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McClure v. Berryhill

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

November 12, 2018

Charles L. McClure, Jr., 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 affirmed.

         PROCEDURAL HISTORY

         In August 2014, Plaintiff filed an application for DIB, alleging a disability onset date of October 13, 2011. [R. 313-16; see R. 11 (providing application date).] The claims were denied initially [R. 159-70] and upon reconsideration [R. 171-84] by the Social Security Administration (“the Administration”). Thereafter, Plaintiff filed a written request for hearing [R. 219, 223-24] and, on March 3, 2017, appeared with an attorney and testified at a hearing before Administrative Law Judge (“ALJ”) Colin Fritz [R. 38-71].[2]

         The ALJ issued a decision on May 15, 2017, finding Plaintiff not disabled under the Social Security Act (“the Act”). [R. 11-29.] At Step 1, [3] the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2016, and had not engaged in substantial gainful activity since his alleged onset date of October 13, 2011. [R. 13, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had severe impairments of headaches, obesity, diabetes, a spine disorder, an affective disorder, an anxiety disorder, and a personality disorder. [R. 13, Finding 3.] The ALJ also noted that Plaintiff had non-severe impairments of knee pain, urethral stenosis and enlarged prostate, gastroesophageal reflux disease, and asthma. [R. 14.] At Step 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 C.F.R. Part 404, Subpart P, Appendix 1. [R. 15-16, Finding 4.]

         Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ assessed Plaintiff's residual functional capacity (“RFC”) and found as follows:

After careful consideration of the entire record, the undersigned finds that, through the date of last insured, over the course of an 8-hour workday, in 2-hour increments with normal and acceptable work breaks, [Plaintiff] can perform work at the medium exertional level, as defined in 20 CFR 404.1567(c). He can never climb ladders[, ] ropes and scaffolds. He can occasionally crawl. He can frequently climb ramps and stairs, balance, stoop, kneel and crouch. He can occasionally be exposed to hazards associated with unprotected dangerous machinery or unprotected heights. He has sufficient concentration, persistence and pace to understand, remember and carry out simple, routine tasks, in a low stress work environment (defined as being free of fast-paced or team-dependent production requirements), involving simple work-related decisions, occasional independent judgment skills and occasional work place changes. He can perform jobs where the worker is largely isolated from the general public, dealing with data and things rather than people. He can perform jobs where the work duties can be completed independently from coworkers; however, physical isolation is not required. He can respond appropriately to reasonable and customary supervision.

         [R. 18, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform his past relevant work as a tractor trailer truck driver. [R. 27, Finding 6.] However, based on Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert (“VE”), the ALJ determined that, through the date of the ALJ's decision, there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. [R. 28, Finding 10.] Accordingly, the ALJ concluded Plaintiff was not under a disability, as defined in the Act, at any time from October 13, 2011, the alleged onset date, through December 31, 2016, the date last insured. [R. 29, Finding 11.]

         Plaintiff requested Appeals Council review of the ALJ's decision, and the Appeals Council declined review. [R. 1-5.] Plaintiff filed the instant action for judicial review on December 19, 2017. [Doc. 1.]

         THE PARTIES' POSITIONS

         Plaintiff contends that errors by the ALJ require the decision to be reversed and the case remanded with instructions to award benefits. [Doc. 20.] Specifically, Plaintiff argues the ALJ erred by assigning only “some weight” to the medical source opinion of Plaintiff's treating psychiatrist, Dr. Michael Tran of the Anderson-Oconee-Pickens Mental Health Center [id. at 20-26]; by failing to build a “logical bridge” to explain how the limitations placed on Plaintiff's RFC account for his limitations due to his need to change his position from standing to sitting [id. at 26-30]; and by failing to comply with SSR 96-7p in assigning “some weight” to the witness statement in the record from Plaintiff's wife [R. 30-33].

         The Commissioner contends the ALJ's decision is supported by substantial evidence and should be affirmed. [Doc. 23.]

         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 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 ‘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).[4] 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).

         APPLICABLE LAW

         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 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).

         I. The Five-Step Evaluation

         To 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. 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); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).

         A. Substantial Gainful Activity

         “Substantial gainful activity” must be both substantial-involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)-and gainful-done for pay or profit, whether or not a profit is realized, id. ยง 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is ...


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