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Ganshow v. Berryhill

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

November 6, 2018

Stanley Francis Ganshow, Plaintiff,
Nancy A. Berryhill, Commissioner of Social Security, Defendant.


          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).


         In November 2012, Plaintiff protectively filed an application for DIB, alleging on onset of disability date of November 16, 2012. [R. 373-74.] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 208-15, 218-29.] Plaintiff requested a hearing before an administrative law judge (“ALJ”) and, on July 29, 2014, ALJ Peggy McFadden-Elmore conducted a de novo hearing on Plaintiff's claims. [R. 183-207.]

         The ALJ issued a decision on September 8, 2014, finding Plaintiff not disabled under the Social Security Act (“the Act”) at any time from November 16, 2012, through the date of the decision. [R. 234-45.] Plaintiff sought Appeals Council review and the Appeals Council granted review of the decision, and on December 17, 2015, the Appeals Council vacated the ALJ's hearing decision and remanded the case to the ALJ for resolution of the following issues:

• The hearing decision indicates that great weight is accorded the consultative examiner opinion rendered by Howard L. Brilliant, M.D., dated January 2, 2013 (Exhibit 3F; Decision, page 9). This opinion appears to assess the claimant with greater limitations than those found in the decision. Dr. Brilliant's opinion indicates that claimant appears unable to stand, walk, climb, squat or do any sort of strenuous activity involving the right lower extremity and would be unable to work as a fireman (Exhibit 3F, page 2). The hearing decision, however, only limits the claimant to performing medium work as defined except the claimant is limited to occasional pushing and pulling with the right lower extremity (Finding 5). Further consideration of this opinion evidence with an assessment of the weight accorded the evidence and further consideration of claimant's residual functional capacity is necessary.
• The hearing decision finds that the claimant is able to perform his past relevant work as an emergency medical technician as it is generally performed in the nationally economy, but not as it was actually performed by the claimant (Decision, page 11; Finding 6). Additionally, it appears that the claimant's work as an emergency medical technician was performed as a composite job wherein the claimant simultaneously worked as a firefighter (Exhibit 2E, page 3-4). The decision, however, does not contain an adequate comparison of function by function limitations and the physical demands of the claimant's past relevant work as actually performed by the claimant and as generally performed in the national economy (Social Security Rulings 82-61 and 96-8p).
• The hearing decision finds that the claimant is able to perform his past relevant work as a cook. On July 29, 2014, the claimant testified that he worked as a cook from 1999-2001. The claimant's earnings records indicate that while working as a cook he earned $5, 336.95 in 1999, $5, 467.33 in 2000 and $2, 342.27 in 2001 (Exhibit 7D). The record is not clear regarding how many months the claimant was employed as a cook during each year. Therefore, further development of the claimant's employment history is necessary to determine whether the claimant's past job of cook meets the statutory definition for past relevant work under 20 CFR 404.1565.

         Upon remand the Administrative Law Judge will:

• Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations (Social Security Ruling 96-8p). In so doing, evaluate the nontreating source opinion rendered by Howard L. Brilliant, M.D., dated January 2, 2013 (Exhibit 3F) pursuant to the provisions of 20 CFR 404.1527 and Social Security Rulings 96-2p and 96-5p, and explain the weight given to such opinion evidence. As appropriate, the Administrative Law Judge may request the nontreating source to provide additional evidence and/or further clarification of the opinion (20 CFR 1520b).
• Give further consideration to whether the claimant has past relevant work he could perform in accordance with Social Security Ruling 82-62 and 20 CFR 404.1565(a).
• Obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Ruling 83-14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).

[R. 253-54.]

         The ALJ conducted a subsequent hearing on Plaintiff's claims on April 21, 2016 [R. 154-82], and issued a decision on May 25, 2016, finding Plaintiff not disabled under the Act [R. 15-39]. At Step 1[2], the ALJ determined that Plaintiff met the insured status requirements of the Act through December 31, 2016, and had not engaged in substantial gainful activity during the period from his alleged onset date of November 16, 2012, through the date of the decision. [R. 20, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: early multilevel degenerative disc disease, obesity, mononeuritis, and status post right leg injury. [R. 21, Finding 3.] The ALJ also noted Plaintiff had the following non-severe impairments: hyperlipidemia and diabetes mellitus, hypertension, mild blurred vision, and a mental impairment of depression. [R. 21.] 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. 22, Finding 4.]

         Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ determined Plaintiff had the following residual functional capacity (“RFC”):

[C]laimant has the residual functional capacity to perform a range of light work as defined in 20 CFR 404.1567(b). The claimant is capable of lifting and/or carrying 20 pounds occasionally and 10 pounds frequently. He is capable of standing and/or walking at least 6 hours in an 8-hour workday and sitting about 6 hours in an 8-hour workday. He is limited to occasionally pushing and/or pulling with his right lower extremity. He can never climb ladders, ropes and scaffolds; occasionally climb ramps and/or stairs, and crawl, and frequently balance, stoop, kneel, and crouch. He must avoid concentrated exposure to workplace hazards.

[R. 24, Finding 5.] At Step 4, the ALJ determined that Plaintiff was unable to perform his past relevant work as a firefighter lieutenant, firefighter, EMT, firefighter engineer, and fire truck driver. [R. 31, Finding 6.] Considering Plaintiff's age, education, work experience, residual functional capacity, and the testimony of the vocational expert (“VE”), however, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 32, Finding 10.] Consequently, the ALJ determined that Plaintiff had not been under a disability as defined by the Act from November 16, 2012, through the date of the decision. [R. 33, Finding 11.]

         Plaintiff again requested Appeals Council review of the ALJ's decision, but the Council declined review. [R. 1-7.] Plaintiff filed this action for judicial review on July 11, 2017. [Doc. 1.]


         Plaintiff argues that the ALJ's decision is not supported by substantial evidence, and, to avoid further unwarranted delay, the Court should reverse the ALJ's decision and award Plaintiff benefits. [Doc. 13 at 13.] Specifically, Plaintiff argues that the ALJ failed to consider the disability determination by the South Carolina Retirement System on December 14, 2015, re-approving his disability determination from November 18, 2012 [id. at 11]; failed to adequately consider the medication side effects in his RFC determination [id. at 11-12]; and failed to give controlling weight to the opinion of Plaintiff's treating physician [id. at 12-13].

         The Commissioner, on the other hand, contends that the ALJ's decision is supported by substantial evidence and should be affirmed. [Doc. 15.] The Commissioner argues that the ALJ acknowledged the decision of the South Carolina Retirement System in her summary of Dr. Eller's March 2016 treatment notes and, to the extent the ALJ found Plaintiff was unable to perform his previous employment, the ALJ's decision was not inconsistent with the State's disability determination [id. at 10-11]; the ALJ adequately considered Plaintiff's medication side effects in the RFC and accounted for all limitations credibly established in the record [id. at 11-12]; and the ALJ properly weighed the opinion of Plaintiff's treating physician [id. at 12-15].


         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).


         The Act 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 ...

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