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O'Brien v. Berryhill

United States District Court, D. South Carolina

December 14, 2018

Jane Marie O'Brien, 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.[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).[2]

         PROCEDURAL HISTORY

         In March 2014, Plaintiff filed an application for DIB, alleging an onset of disability date of October 25, 2013. [R. 183-186.] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 100-104, 109-113.] Plaintiff requested a hearing before an administrative law judge (“ALJ”) and, on November 14, 2016, ALJ Mattie Harvin-Woode conducted a de novo hearing on Plaintiff's claims. [R. 32-64.]

         The ALJ issued a decision on December 30, 2016, finding Plaintiff not disabled under the Social Security Act (“the Act”). [R. 15-25.] At Step 1, [3] the ALJ determined that Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2019, and has not engaged in substantial gainful activity since October 25, 2013, the alleged onset date. [R. 17, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: major depressive disorder, generalized anxiety disorder, panic disorder with agoraphobia, hypertension and right knee meniscus tear status post partial meniscectomy. [R. 17, Finding 3.] The ALJ also noted a number of “non-severe” impairments including osteopenia, mild hearing loss, and appendicitis. [R. 17.] 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. 18, Finding 4.] With respect to Plaintiff's mental impairments, the ALJ found Plaintiff suffered from moderate restrictions in her activities of daily living; moderate difficulties in social functioning; moderate difficulties with concentration, persistence, and pace; and had experienced one to two episodes of decompensation. [R. 18-19.] The ALJ ultimately found Plaintiff's mental impairments did not reach listing level disability. [R. 19.]

         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, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except she can frequently kneel and crawl. She can perform simple, routine tasks. She can tolerate occasional interaction with coworkers but no general public interaction. She can tolerate ordinary work pressures, but needs to avoid excessive workloads, high quotas, quick decision making and rapid changes in work tasks.

[R. 20, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform her past relevant work as a programmer and a business analyst. [R. 23, 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. 24, Finding 10.] Consequently, the ALJ determined that Plaintiff had not been under a disability, as defined in the Act, at any time from October 25, 2013, through the date of the decision. [R. 25, Finding 11.]

         Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined review. [R. 1-6.] Plaintiff filed this action for judicial review on January 25, 2018. [Doc. 1.]

         THE PARTIES' POSITIONS

         Plaintiff contends the Commissioner's final decision should be reversed outright and the case remanded for an award of benefits or, in the alternative, additional administrative proceedings. [Doc. 19 at 2.] Plaintiff argues that the ALJ failed to explain her RFC findings in accordance with SSR 96-8p and, specifically, failed to account for Plaintiff's moderate difficulties in concentration, persistence, and pace in the RFC. [Id. at 16-23.] Plaintiff also argues that the ALJ failed to account for her tremors and tremulousness [id. at 23-25]; and failed to properly weigh the medical opinions in the record or explain her consideration of Plaintiff's subjective reports with respect to her symptoms in accordance with SSR 16-3p [id. at 24-32].

         The Commissioner, on the other hand, contends that the ALJ's decision is well reasoned and supported by substantial evidence and that it should be affirmed. [Doc. 21.] The Commissioner argues the ALJ's decision properly accounts for all for Plaintiff's credibly established limitations, including her limitations in concentration, persistence, and pace, and her tremor symptoms. [Id. at 11-17.] The Commissioner also contends the ALJ complied with agency regulations and policies in evaluating the opinion evidence in the record and in considering her subjective allegations of symptoms associated with her mental limitations. [Id. at 17-23.]

         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 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 byamendment 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 ...


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