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. §
25, 2012, Plaintiff filed applications for DIB and SSI,
alleging an onset of disability date of July 1, 2012. [R.
186-98; see R. 12.] The claims were denied initially
and on reconsideration by the Social Security Administration
(“the Administration”). [R. 66- 139, 144-47.]
Plaintiff requested a hearing before an administrative law
judge (“ALJ”) and on May 13, 2015, ALJ Ronald
Fleming conducted a de novo hearing on Plaintiff's
claims. [R. 30-65.]
issued a decision on August 17, 2015, finding Plaintiff not
disabled under the Social Security Act (“the
Act”). [R. 19-29.] At Step 1, the ALJ determined that
Plaintiff met the insured status requirements of the Act
through September 30, 2015, and had not engaged in
substantial gainful activity since July 1, 2012, the alleged
onset date. [R. 14, Findings 1 & 2.] At Step 2, the ALJ
found Plaintiff had the following severe impairments:
degenerative disc disease, cervical spine; degenerative disc
disease, lumbar spine; bilateral carpal tunnel syndrome;
anxiety; and depression. [R. 14, Finding 3.] The ALJ also
noted Plaintiff had the following non-severe impairments:
hypertension, headaches, right hip disorder, tachycradia,
heart murmur, and history of mitral regurgitation. [R.
14-15.] 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. 15, Finding 4.]
addressing Step 4, Plaintiff's ability to perform her
past relevant work, the ALJ determined Plaintiff had 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) which includes no climbing
ladders, ropes, and scaffolds; frequent climbing ramps and
stairs; frequent balancing and stooping; no kneeling,
crouching, and crawling; occasional fingering and feeling
with the bilateral upper extremities; and mentally: the
claimant is limited to occupations requiring no more than
simple, routine, repetitive tasks not performed in a fast
paced production environment; involving only simple
work-related instructions and decisions and relatively few
work place changes; and is further limited to occupations
with occasional interaction with co-workers and members of
the general public.
[R. 17, Finding 5.] Based on this RFC, the ALJ determined at
Step 4 that Plaintiff was unable to perform her past relevant
work as a certified nurse's assistant, protective
officer, and house parent. [R. 22, 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.23, Finding 10.] Thus, on that
basis, the ALJ determined that Plaintiff had not been under a
disability, as defined in the Act, from July 1, 2012, through
the date of the decision. [R. 23, Finding 11.]
requested Appeals Council review of the ALJ's decision,
but the Council declined review. [R. 1-3.] Plaintiff filed
this action for judicial review on May 17, 2017. [Doc. 1.]
contends the ALJ's decision is not supported by
substantial evidence and should be remanded because the ALJ
failed to properly assess the medical opinion evidence [Doc.
10 at 14-17]; failed to account for Plaintiff's moderate
difficulties in maintaining concentration, persistence, and
pace or her handling restrictions in his RFC findings
[id. at 18-21]; failed to resolve conflicts between
the DOT and the VE's testimony [id. at 22-23];
and failed to properly evaluate Plaintiff's credibility
[id. at 23-29].
Commissioner, on the other hand, contends that substantial
evidence supports the ALJ's decision and that the ALJ
properly evaluated the opinion evidence [Doc. 11 at 5-7];
properly evaluated Plaintiff's functional limitations in
developing the RFC [id. at 7-9]; properly found
Plaintiff capable of other work at Step 5 [id. at
9-10]; and properly considered Plaintiff's pain
complaints in assessing her credibility [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. 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).