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
Title 28, United States Code, Section
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. §
November 26, 2012, Plaintiff filed applications for DIB [R.
243-249; see R. 20] and SSI [R. 250-256;
see R. 20], alleging a disability onset date of
December 16, 2011 [R. 243, 250]. The claims were denied
initially [R. 68-95] and upon reconsideration [R. 101-136] by
the Social Security Administration (“the
Administration”). Plaintiff filed a request for hearing
before an administrative law judge (“ALJ”), and
on December 30, 2014, ALJ Peggy McFadden-Elmore conducted a
de novo hearing on Plaintiff's claims. [R. 41-67.]
January 30, 2015, the ALJ issued her decision, finding
Plaintiff not disabled. [R. 20-39.] At Step 1, the ALJ
determined that Plaintiff met the insured status requirements
of the Social Security Act (“the Act”) through
March 31, 2013, and that he had not engaged in substantial
gainful activity since December 16, 2011, the alleged onset
date. [R. 24, Findings 1 & 2.] At Step 2, the ALJ found
Plaintiff had the following severe impairments: status post
concussion/cerebral trauma; headaches; degenerative disc
disease; osteoarthritis; borderline intellectual functioning;
and major depression, single episode, mild. [R. 24, Finding
3.] The ALJ also noted Plaintiff had non-severe impairments
of rheumatoid arthritis and a history of alcohol abuse. [R.
24.] The ALJ noted that Plaintiff testified to having limited
use of his left hand, but that there were no deficits noted
in the record and it was unclear whether this symptom was
related to a medically determinable impairment.
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 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and
416.926). [R. 24-25, Finding 4.] Before addressing Step 4,
the ALJ determined Plaintiff had the following residual
functional capacity (“RFC”):
the claimant has the [RFC] to perform medium work as defined
in 20 CFR 404.1567(c) and 416.967(c). Specifically, the
claimant can lift and carry up to 50 pounds occasionally and
25 pounds frequently, sit for 6 hours in an 8-hour day, and
stand and/or walk for 6 hours in an 8-hour day. The claimant
can frequently climb ladders, ropes and scaffolds. The
claimant is limited to unskilled work, generally defined as
requiring only simple, routine and repetitive tasks. The
claimant cannot have any interaction with the general public.
He cannot have team-type interaction with coworkers, but he
can have incidental contact with the public and coworkers.
[R. 27, Finding 5.]
4, the ALJ determined that Plaintiff was unable to perform
his past relevant work as a heavy equipment operator, a
mechanic, a construction laborer, a forklift operator, or
warehouse worker. [R. 32-33, Finding 6.] However, upon
considering Plaintiff's age, education, work experience,
RFC, and the testimony of a vocational expert
(“VE”), the ALJ found that there were jobs that
exist in significant numbers in the national economy that
Plaintiff could perform. [R. 33, Finding 10.] Thus, on that
basis, the ALJ determined that Plaintiff had not been under a
disability as defined by the Act from December 16, 2011,
through the date of the decision. [R. 34, Finding 11.]
requested Appeals Council review of the ALJ's decision,
and the Appeals Council declined. [R. 1-8.] Plaintiff filed
the instant action for judicial review on June 2, 2017. [Doc.
contends the ALJ's decision is not supported by
substantial evidence and contains legal errors warranting the
reversal and remand of the case. [See Doc.15.]
Specifically, Plaintiff contends the ALJ failed to properly
consider Plaintiff's mental impairments under Listing
12.05. [Id. at 6-10.] The Commissioner contends the
ALJ's decision should be affirmed because there is
substantial evidence of record that Plaintiff was not
disabled within the meaning of the Act. [See Doc.
16.] Specifically, the Commissioner contends substantial
evidence supports the ALJ's finding that Plaintiff did
not meet the Listing 12.05 requirements because the Plaintiff
failed to show the requisite deficits in adaptive functioning
prior to age 22. [Id. at 8-11.]
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 Consol. 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. 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,
1091-92 (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 may be appropriate to allow the Commissioner to explain
the basis for the decision. See 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), rev'd
on other grounds. 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 continuous period
of not less than 12 consecutive months[.]
Id. § 423(d)(1)(A).
The Five Step Evaluation
facilitate uniform and efficient processing of disability
claims, federal regulations have reduced the statutory
definition of disability to a series of five sequential
questions. See, e.g., Heckler v. Campbell,
461 U.S. 458, 461 n.2 (1983) (noting a “need for
efficiency” in considering disability claims). The ALJ
must consider whether (1) the claimant is engaged in
substantial gainful activity; (2) the claimant has a severe
impairment; (3) the impairment meets or equals an impairment
included in the Administration's Official Listings of
Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4)
the impairment prevents the claimant from performing past
relevant work; and (5) the impairment prevents the claimant
from having substantial gainful employment. 20 C.F.R.
§§ 404.1520, 416.920. Through the fourth step, the
burden of production and proof is on the claimant. Grant
v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The
claimant must prove disability on or before the last day of
his insured status to receive disability benefits.
Everett v. Sec'y of Health, Educ. &
Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the
inquiry reaches step five, the burden shifts to the
Commissioner to produce evidence that other jobs exist in the
national economy that the claimant can perform, considering
the claimant's age, education, and work experience.
Grant, 699 F.2d at 191. If at any step of the
evaluation the ALJ can find an individual is disabled or not
disabled, further inquiry is unnecessary. 20 C.F.R.
§§ 404.1520(a), 416.920(a)(4); Hall v.
Harris, 658 F.2d 260, 264 (4th Cir. 1981).
Substantial Gainful Activity
gainful activity” must be both substantial-involves
doing significant physical or mental activities, 20 C.F.R.
§§ 404.1572(a), 416.972(a)-and gainful-done for pay
or profit, whether or not a profit is realized, id.
§§ 404.1572(b), 416.972(b). If an individual has
earnings from employment or self-employment above a specific
level set out in the regulations, he is generally presumed to
be able to engage in substantial gainful activity.
Id. §§ 404.1574-1575, 416.974-975.
impairment is “severe” if it significantly limits
an individual's ability to perform basic work activities.
See Id. §§ 404.1521, 416.921. When
determining whether a claimant's physical and mental
impairments are sufficiently severe, the ALJ must consider
the combined effect of all of the claimant's impairments.
42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ
must evaluate a disability claimant as a whole person and not
in the abstract, having several hypothetical and isolated
illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th
Cir. 1989) (stating that, when evaluating the effect of a
number of impairments on a disability claimant, “the
[Commissioner] must consider the combined effect of a
claimant's impairments and not fragmentize them”).
Accordingly, the ALJ must make specific and well-articulated
findings as to the effect of a combination of impairments
when determining whether an individual is disabled.
Id. at 50 (“As a corollary to this rule, the
ALJ must adequately explain his or her evaluation of ...