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) 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. §
19, 2013, Plaintiff filed applications for DIB and SSI,
alleging an onset of disability date of November 23, 2010.
[R. 237-250; see R. 46.] The claims were denied
initially and on reconsideration by the Social Security
Administration (“the Administration”). [R.
98-160, 166-69.] Plaintiff requested a hearing before an
administrative law judge (“ALJ”) and on October
29, 2015, ALJ Peggy McFadden-Elmore conducted a de novo
hearing on Plaintiff's claims. [R. 66-97.]
issued a decision on December 3, 2015, finding Plaintiff not
disabled under the Social Security Act (“the
Act”). [R. 43-64.] At Step 1,  the ALJ determined that
Plaintiff met the insured status requirements of the Act
through December 31, 2015, and had not engaged in substantial
gainful activity since November 23, 2010, the alleged onset
date. [R. 48, Findings 1 & 2.] At Step 2, the ALJ found
Plaintiff had the following severe impairments: mild
degenerative disc disease; diabetes mellitus; peripheral
neuropathy; history of asthma; and a history of psychosomatic
complaints. [R. 48, Finding 3.] The ALJ also noted Plaintiff
had the following non-severe impairments: hypertension, heart
problems, atypical chest pain, a leg abscess, cellulitis, and
decreased visual acuity. [R. 49.] 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 an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. [R. 49, Finding 4.]
addressing Step 4, Plaintiff's ability to perform his
past relevant work, the ALJ determined Plaintiff had the
following residual functional capacity (“RFC”):
After careful consideration of the entire record, I find that
the claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b).
Specifically, the claimant can lift and/or carry up to 20
pounds occasionally and 10 pounds frequently, stand and/or
walk at least 6 hours in an 8-hour work day, and sit about 6
hours each in an 8-hour work day; however, the claimant can
occasionally climb ladders, ropes, and scaffolds, stoop,
kneel, crouch, and crawl. He can frequently climb ramps
and/or stairs, and balance. The claimant is limited to
frequent bilateral overhead reaching but his reaching is
unlimited in all other directions. He must avoid concentrated
exposure to fumes, odors, dusts, gases, and other respiratory
irritants, and workplace hazards. The claimant is limited to
unskilled work defined as performing simple, routine, and/or
repetitive tasks. He can have no ongoing interaction with the
[R. 51, Finding 5.] Based on this RFC finding, the ALJ
determined at Step 4 that Plaintiff was unable to perform his
past relevant work as a mechanic and a machine operator. [R.
58, Finding 6.] However, 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. 58,
Finding 10.] Accordingly, the ALJ determined that Plaintiff
had not been under a disability, as defined in the Act, from
November 23, 2010, through the date of the decision. [R. 59,
requested Appeals Council review of the ALJ's decision,
but the Council declined review. [R. 1-6.] Plaintiff filed
this action for judicial review on March 9, 2017. [Doc. 1.]
contends the ALJ's decision is not supported by
substantial evidence and should be remanded because the ALJ
failed to account for Plaintiff's moderate difficulties
in maintaining concentration, persistence, and pace in the
RFC findings [R. 16 at 18-21]; failed to consider evidence
regarding Plaintiff's need for a cane [id. at
21-22]; and failed to properly evaluate Plaintiff's
history of psychosomatic complaints in evaluating his
credibility [id. at 28-30]. Plaintiff also contends
the Appeals Council failed to properly consider new evidence
submitted by Plaintiff with respect to his back impairment.
[Id. at 23-26.]
Commissioner, on the other hand, contends the ALJ's
decision is supported by substantial evidence and should be
affirmed. [Doc. 17.] Specifically, the Commissioner contends
that the ALJ clearly explained that any difficulty in
concentration, persistence, and pace were accounted for in
the RFC [id. at 11-14]; explicitly noted there was
not medical necessity for the use of a cane [id. at
14]; and adequately accommodated Plaintiff's severe
history of psychosomatic complaints [id. at 14-16].
The Commissioner also contends that the Appeals Council
properly found that the newly submitted evidence did not
provide a basis for remand. [Id. at 16-23.]
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, 690-91 (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.
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).