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. 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 claim for 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. §
2014, Plaintiff filed an application for SSI, alleging an
onset of disability date of March 1, 2014. [R. 182-88.] The
claim was denied initially and on reconsideration by the
Social Security Administration (“the
Administration”). [R. 91-95; 100-104]. Plaintiff
requested a hearing before an administrative law judge
(“ALJ”), and on October 27, 2016, ALJ Amy Benton
conducted a de novo hearing on Plaintiff's claims. [R.
issued a decision on February 24, 2017, finding Plaintiff not
disabled under the Social Security Act (“the
Act”). [R. 19-34.] At Step 1,  the ALJ found Plaintiff had
not engaged in substantial gainful activity since May 8,
2014, the application date. [R. 21, Finding 1.] At Step 2,
the ALJ found Plaintiff had severe impairments of
degenerative disc disease of the lumbar spine, chronic pain
syndrome, depression, anxiety and bipolar disorder. [R. 21,
Finding 2.] At Step 3, the ALJ found Plaintiff did not have
an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1. [R. 21, Finding 3.]
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:
I find that the claimant has the residual functional capacity
to perform light work as defined in 20 CFR 416.967(b) except
the claimant (1) can occasionally climb stairs and ramps; (2)
can never climb ladders and scaffolds; (3) can occasionally
balance, stoop, kneel, crouch and crawl; and (4) avoid
concentrated exposure to hazards such as unprotected heights
and moving mechanical parts. Further, the claimant can (1)
understand, remember and carry out simple instructions; (2)
have occasional interaction with supervisors; (3) have
incidental interaction with coworkers; (4) have no
interaction with the public; (5) only make simple,
work-related decisions; and (6) only tolerate occasional
change in work location.
[R. 24, Finding 4.] At Step 4, the ALJ determined that
Plaintiff is unable to perform any past relevant work. [R.
32, Finding 5.] The ALJ further found that Plaintiff was 38
years old, which is defined as a younger individual age
18-49, on the date the application was filed, that Plaintiff
had at least a high school education and is able to
communicate in English, and that the transferability of job
skills is not material to the determination of disability.
[R. 32, Findings 6, 7, and 8.] The ALJ then determined that,
based on Plaintiff's age, education, RFC, and the
testimony of a vocational expert (“VE”), there
were jobs that existed in significant numbers in the national
economy that Plaintiff could perform. [R. 32, Finding 9.]
Accordingly, the ALJ concluded Plaintiff had not been under a
disability, as defined in the Act, since May 8, 2014, the
date the application was filed. [R. 33, Finding 10.]
requested Appeals Council review of the ALJ's decision,
but the Council declined review. [R. 1-7.] Plaintiff filed
the instant action for judicial review on February 2, 2018.
contends that the ALJ committed error and asks that decision
be remanded for an award of benefits or, in the alternative,
for further administrative proceedings. [See Doc. 18
at 2.] Specifically, Plaintiff argues the ALJ failed to
adequately consider her impairments under Listing 1.04A
[id. at 14-17]; failed to account for
Plaintiff's moderate difficulties in concentration,
persistence, and pace in the RFC [id. at 18-21];
failed to properly assess the medical source opinion evidence
from Drs. John Whitley (“Dr. Whitley”) and Robyn
Fallaw (“Dr. Fallaw”) [id. at 21-29];
and failed to adequately consider Plaintiff's lack of
insurance benefits in assessing her symptomology and
treatment in accordance with SSR 16-3p [id. at
Commissioner, on the other hand, contends the ALJ's
decision is entitled to deference and that the decision
should be affirmed. [See, Doc. 20 at 2.] The
Commissioner argues the ALJ reasonably concluded that
Plaintiff's spine impairment did not meet or medically
equal the criteria of Listing 1.04(A) [id. at
12-14]; reasonably accounted for Plaintiff's moderate
concentration, persistence, and pace difficulties in the RFC
[id. at 14-17]; properly weighed the opinion
evidence [id. at 17-26]; and properly considered
Plaintiff's subject complaints in accordance with the
factors outlined in the Commissioner' regulations
[id. at 26-29].
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
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).
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, 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
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). 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. §
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.
§ 416.920(a)(4); Hall v. Harris, 658 F.2d 260,
264 (4th Cir. 1981).