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Russell v. Berryhill

United States District Court, D. South Carolina, Anderson/Greenwood Division

October 23, 2018

Heide Jean Russell, Plaintiff,
v.
Nancy A. Berryhill, Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         This 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).[1] 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. § 405(g).

         PROCEDURAL HISTORY

         In July 2013, Plaintiff filed an application for DIB, alleging an onset of disability date of September 15, 2009. [R. 365-70.] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 263-304, 306-10.] Plaintiff requested a hearing before an administrative law judge (“ALJ”) and on both April 28, 2016, and November 3, 2016, ALJ Thaddeus J. Hess conducted de novo hearings on Plaintiff's claims. [R. 248-62, 27-57.]

         The ALJ issued a decision on December 21, 2016, finding Plaintiff not disabled under the Social Security Act (?the Act”). [R. 11- 20.] At Step 1, [2] the ALJ determined that Plaintiff met the insured status requirements of the Act through December 31, 2013, and had not engaged in substantial gainful activity during the period from her alleged onset date of September 15, 2009, through her date last insured of December 31, 2013. [R. 13, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: mitochondrial disorder, Raynaud's phenomenon, asthma, anxiety, personality disorder, and post-traumatic stress disorder (PTSD). [R. 13, Finding 3.] 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. 13, Finding 4.]

         Before 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, I find that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant can never crawl, balance, or climb ladders, ropes, or scaffolds. The claimant [can] occasionally climb ramps and stairs, stoop, kneel, and crouch. She should avoid concentrated exposure to extreme cold or heat, workplace hazards such as unprotected heights and moving machinery, and respiratory irritants such as dust, fumes, gases, etc. The claimant can perform simple, routine tasks for two hour blocks of time with normal rest breaks during an eight hour work day.

[R. 15, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform her past relevant work as a secretary, babysitter, and door-to-door insurance sales agent. [R. 18, Finding 6.] Considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert (“VE”), however, the ALJ found that, through the date last insured, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 18, Finding 10.] Consequently, the ALJ determined that Plaintiff had not been under a disability, as defined in the Act, at any time from September 15, 2009, the alleged onset date, through December 31, 2013, the date last insured. [R. 19, Finding 11.]

         Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined review. [R. 1-5.] Plaintiff filed this action for judicial review on October 2, 2017. [Doc. 1.]

         THE PARTIES' POSITIONS

         Plaintiff contends the Commissioner's final decision should be reversed outright and the case remanded for certification of benefits beginning September 15, 2009, or in the alternative, the case should be remanded for a new hearing and decision. [Doc. 20 at 1.] Specifically, Plaintiff contends the ALJ failed to properly consider her medical records after her date last insured in evaluating her disability, particularly where the evidence corroborated her condition prior to the date last insured [id. at 19-22]; the ALJ erred in weighing the medical source opinions of the consultative examiners without evaluating the factors in 20 C.F.R. § 404.1527 [id. at 26-28]; failed to build a “Logical Bridge” to explain why limitations placed in the RFC account for Plaintiff's mental and physical limitations in light of the Fourth Circuit's ruling in Mascio v. Colvin [ id. at 28-32]; and failed to comply with SSR 96-7p in rejecting Plaintiff's testimony regarding the severity of her symptoms [id. at 32-34]. Plaintiff further contends the Appeals Council improperly declined to consider new and material evidence submitted by Plaintiff's treating physician. [Id. at 22-26.]

         The Commissioner, on the other hand, contends that the ALJ's decision is supported by substantial evidence and should be affirmed. [Doc. 22.] The Commissioner argues that the ALJ properly considered Plaintiff's medical evidence, including the evidence presented after her date last insured [id. at 7-9]; properly weighed the medical opinion evidence [id. at 14-15]; properly expressed Plaintiff's limitations in terms of specific work-related functions in the RFC [id. at 16-18]; and properly considered Plaintiff's subjective complaints in accordance with SSR 16-3p, which superseded SSR 96-7p [id. at 18-20]. The Commissioner further contends the Appeals Counsel properly found that the newly submitted evidence did not provide a basis for remand. [Id. at 10-14.]

         STANDARD OF REVIEW

         The 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 ‘substantial evidence.'”).

         Where 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).

         The 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).

         The 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 (1991)).

         In 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).[3] 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).

         APPLICABL ...


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