United States District Court, D. South Carolina
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 disability insurance benefits
(“DIB”) and 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. §
March 2014, Plaintiff filed applications for DIB and SSI,
alleging an onset of disability date of January 5, 2014. [R.
245-261.] The claims were denied initially and on
reconsideration by the Social Security Administration
(“the Administration”). [R. 163-170; 176-181].
Plaintiff requested a hearing before an administrative law
judge (“ALJ”) and, on December 16, 2016, ALJ
Colin Fritz conducted a de novo hearing on Plaintiff's
claims. [R. 37-66.]
issued a decision on January 13, 2017, finding Plaintiff not
disabled under the Social Security Act (“the
Act”). [R. 17-29.] At Step 1,  the ALJ determined that
Plaintiff met the insured status requirements of the Act
through March 31, 2016, and had not engaged in substantial
gainful activity since January 5, 2014, the alleged onset
date. [R. 19, Findings 1 & 2.] At Step 2, the ALJ found
Plaintiff had the following severe impairments: lumbar
stenosis, bilateral shoulder impingement, right knee
degenerative joint disease, diabetes, and obesity. [R. 19,
Finding 3.] The ALJ also noted Plaintiff had non-severe
impairments of decreased vision in the right eye,
hypertension, right axilla growth, respiratory disorder,
schizophrenia, and marijuana use. [R. 22.] At Step 3, the ALJ
determined that 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. 23, Finding 4.]
addressing Step 4, Plaintiff's ability to perform his
past relevant work, the ALJ determined Plaintiff had the
following residual functional capacity (“RFC”):
After careful consideration of the entire record, I find that
the claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except that standing and walking combined can be performed
for 4 hours out of an 8-hour workday, and sitting can be
performed for 6 hours out of an 8-hour workday; he can never
climb ladders, ropes or scaffolds; he can occasionally climb
ramps and stairs, kneel, crouch and crawl; he can
occasionally stoop to lift within the exertional level from
the floor to the waist; he can frequently stoop to lift
within the exertional level from waist height and above; he
can frequently balance; bilateral overhead reaching can be
performed frequently within the exertional level; he can
occasionally be exposed to bright sunlight, extreme cold,
extreme heat, pulmonary irritants (such as fumes, smoke,
odors, dust, gases and poor ventilation) and 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; and he should not be openly
exposed to controlled substances or prescription medications
(such as work in a law enforcement evidence facility,
forensic lab, pharmaceutical manufacturing plant, medical
facility or pharmacy).
[R. 24, Finding 5.] The ALJ determined at Step 4 that
Plaintiff was unable to perform his past relevant work as a
machine operator, forklift driver, and bakery worker. [R. 27,
Finding 6.] However, based on Plaintiff's age, education,
work experience, RFC, and the testimony of a vocational
expert, the ALJ determined that, through the date last
insured, 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 that
Plaintiff had not been under a disability, as defined in the
Act, from January 5, 2014, the alleged onset date, through
the date of the decision. [R. 29, Finding 11.]
requested Appeals Council review of the ALJ's decision,
but the Council declined. [R. 1-6.] Plaintiff filed the
instant action for judicial review on December 12, 2017.
contends that the ALJ committed error because it is not
supported by substantial evidence and that the decision of
the ALJ should therefore be remanded for further
administrative proceedings. [Doc. 12. at 27.] Specifically,
Plaintiff alleges the ALJ improperly relied on the testimony
of the vocational expert (“VE”) by failing to
elicit an explanation for the potential conflict between the
VE's testimony and the Dictionary of Occupational Titles
(“DOT”). [Id. at 24-28.]
Commissioner, on the other hand, contends the decision is
supported by substantial evidence and should be affirmed.
[Doc. 13.] The Commissioner contends there was no conflict
between GED reasoning level two and simple, routine tasks
where the hypothetical questions do not include an additional
restriction on instructions. [Id. at 6-9.]
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 ...