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. §
August 2013, Plaintiff protectively filed a claim for SSI,
alleging an onset of disability date of June 21,
2013. [R. 283-289; see R. 100.]
Plaintiff later amended her onset of disability date to July
13, 2015. [R. 314-317; see R. 100.] The claim was
denied initially [R. 190-194] and on reconsideration [R.
199-204] by the Social Security Administration (“the
Administration”). Plaintiff requested a hearing before
an administrative law judge (“ALJ”), and on March
17, 2016, ALJ Tammy Georgian conducted a video hearing on
Plaintiff's claims from North Charleston, while Plaintiff
appeared in Florence, South Carolina. [R. 118-138;
see R. 100.]
issued a decision on March 30, 2016, finding Plaintiff not
disabled. [R. 100-117.] At Step 1,  the ALJ determined that
Plaintiff met the insured status requirements of the Social
Security Act (“the Act”) through December 31,
2014, and that she had not engaged in substantial gainful
activity since July 13, 2015, the alleged onset date. [R.
103, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff
had severe impairments of anxiety and depression. [R. 103,
Finding 3.] The ALJ also noted that Plaintiff had non-severe
impairments of diabetes mellitus, hypertension,
hyperlipidemia, and obesity; as well as a non-medically
determinable impairment of cardiovascular accident. [R. 103.]
3, the ALJ found Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one
of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1. [R. 104, Finding 4.] Before addressing Step 4,
Plaintiff's ability to perform her past relevant work,
the ALJ assessed Plaintiff's residual functional capacity
(“RFC”) and found as follows:
the claimant has the [RFC] to perform a full range of work at
all exertional levels but with several non-exertional
limitations. Specifically, due to mental deficits, the
claimant is limited to simple and routine tasks not performed
at a production rate pace, thereby excluding all assembly
line type work. Additionally, the claimant is limited to
making only simple work-related decisions. The claimant is
further limited to only occasional superficial interactions
with supervisors, co-workers, or the general public.
[R. 106, Finding 5.] The ALJ determined at Step 4 that
Plaintiff is unable to perform her past relevant work as a
credit clerk, store laborer, or customer service
representative. [R. 111, Finding 6.] However, based on
Plaintiff's age, education, work experience, RFC, and the
testimony of a vocational expert (“VE”), the ALJ
determined that there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform.
[R. 112, Finding 10.] Thus, on that basis, the ALJ determined
that Plaintiff had not been under a disability, as defined by
the Act, from July 13, 2015, through the date of the
decision. [R. 113, Finding 11.]
requested Appeals Council review of the ALJ's decision
and the Council declined review. [R. 1-6.] Plaintiff filed
this action for judicial review on August 22, 2017. [Doc. 1.]
contends that errors by the ALJ require the decision to be
remanded for further administrative proceedings.
[See Doc. 10.] Specifically, Plaintiff alleges the
ALJ erred by failing to find that her mental impairments meet
Listing 12.04 [id. at 3-7]; and by failing to
fulfill the “mandatory discussion requirement”
outlined in SSR 96-8p and required by Mascio v.
Colvin, 780 F.3d 632 (4th Cir. 2015) [id. at
8-9]. Plaintiff requests that the Court reverse this matter
“out right for the payment of benefits”.
[Id. at 10.]
Commissioner contends the decision is supported by
substantial evidence and should be affirmed. [See
Doc. 14.] The Commissioner contends the ALJ properly
considered the criteria of Listing 12.04 and found Plaintiff
did not meet the listing [id. at 7-9]; and that the
ALJ's RFC determination was consistent with agency policy
and Mascio [id. at 10-14].
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 her; (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
her 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, she 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 the
combined effects of the impairments.”). If the ALJ
finds a combination of impairments to be severe, “the
combined impact of the impairments shall be considered
throughout the disability determination process.” 42
U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
Meets or Equals an Impairment Listed in the ...