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Hacket v. Berryhill

United States District Court, D. South Carolina

February 14, 2019

Alisha Monique Hacket, Plaintiff,
Nancy Berryhill, Acting Commissioner of Social Security Administration, Defendant.


          Richard Mark Gergel, United States District Court Judge

         Plaintiff has brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Commissioner of Social Security denying her claim for Supplemental Security Income ("SSI"). In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 DSC, this matter was referred to a United States Magistrate Judge for pre-trial handling. The Magistrate Judge issued a Report and Recommendation ("R & R") on December 28, 2018, recommending that the Court affirm the decision of the Commissioner. (Dkt. No. 23). Plaintiff filed objections to the R & R and the Commissioner filed a reply. (Dkt. No. 25, 26). As explained more fully below, the Court reverses the decision of the Commissioner and remands the matter to the agency with instructions to award benefits to Plaintiff from the onset date of July 11, 2013.

         Legal Standard

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of those portions of the R & R to which specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge. See 28 U.S.C. § 636(b)(1).

         The role of the federal judiciary in the administrative scheme established by the Social Security Act is a limited one. The Act provides that the "findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). "Substantial evidence has been defined innumerable times as more than a scintilla, but less than preponderance." Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard precludes de novo review of the factual circumstances that substitutes the Court's findings of fact for those of the Commissioner. See Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971).

         Although the federal court's review role is a limited one, "it does not follow, however, that the findings of the administrative agency are to be mechanically accepted. The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative action." Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). Further, the Commissioner's findings of fact are not binding if they were based upon the application of an improper legal standard. See Coffman v. Bowen, 829 F.2d 514, 519 (4th Cir. 1987).

         The Commissioner, in passing upon an application for disability benefits, is required to undertake a five-step sequential process. At Step One, the Commissioner must determine whether the claimant is engaged in substantial gainful work. If the claimant is not engaged in substantial gainful employment, the Commissioner proceeds to Step Two, which involves a determination whether the claimant has a "severe medically determinable physical or mental impairment." If the claimant has one or more severe impairments, the Commissioner proceeds to Step Three, which involves a determination whether any impairment satisfies one of the designated list of impairments that would automatically render the claimant disabled. Where a claimant does not satisfy one of the listed disabling impairments, the Commissioner must proceed to Step Four, which involves a determination of the claimant's residual functional capacity ("RFC"). Once the RFC is determined, the Commissioner proceeds to Step Five to determine if jobs exist in significant numbers in the national economy that the claimant can perform in light of her RFC. 20 C.F.R. § 404.1520(a)(4). The claimant carries the burden of establishing the requirements of Steps One through Step Four, but at Step Five the burden shifts to the Commissioner. If the Commissioner fails to carry her burden at Step Five, the claimant is entitled to a finding of disability as a matter of law. See Pearson v. Colvin, 810 F.3d 204, 209-10 (4th Cir. 2015).

         Where a claimant has more than one mental or physical impairment, the Commissioner is obligated to consider the combined effects of the claimant's multiple impairments "without regard to whether any such impairment if considered separately" would render the claimant disabled. 42 U.S.C. § 423(d)(2)(B). As the Fourth Circuit observed in Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989), "it is axiomatic that disability may result from a number of impairments which, taken separately, may not be disabling, but whose total effect, taken together, is to render the claimant unable to engage in gainful activity." As the Walker court observed, the Commissioner must "consider the combined effect of a claimant's impairments and not fragmentize them." Id.

         A claimant may offer relevant evidence to support his or her disability claim throughout the administrative process. Even after the Administrative Law Judge ("ALJ") renders a decision, a claimant who has sought review from the Appeals Council may submit new and material evidence to the Appeals Council as part of the process for requesting review of an adverse ALJ decision. 20 C.F.R. §§ 404.968, 404.970(b).[1] The new evidence offered to the Appeals Council is then made part of the record. The Social Security Regulations do not expressly require the Appeals Council to weigh the newly produced evidence and reconcile it with previously produced conflicting evidence before the ALJ. Instead, the regulations require only that the Appeals Council make a decision whether to review the case and, if it chooses not to grant review, there is no express requirement that the Appeals Council weigh and reconcile the newly produced evidence. Meyer v. Astrue, 662 F.3d 700, 705-06 (4th Cir. 2011).

         As the Fourth Circuit addressed in Meyer, the difficulty arises under this regulatory scheme on review by the courts where the newly produced evidence is made part of the record for purposes of substantial evidence review but the evidence has not been weighed by the fact finder or reconciled with other relevant evidence. Meyer held that as long as the newly presented evidence is uncontroverted in the record or all the evidence is "one-sided," a reviewing court has no difficulty determining whether there is substantial evidence to support the Commissioner's decision. Id. at 707. However, where the "other record evidence credited by the ALJ conflicts with the new evidence," there is a need to remand the matter to the fact finder to "reconcile that [new] evidence with the conflicting and supporting evidence in the record." Id. Remand is necessary because "[a]ssessing the probative value of the competing evidence is quintessentially the role of the fact finder." Id.

         Factual Background

         Plaintiff was born on August 15, 1989 with significant congenital malformations of her spine. She underwent major spinal surgeries in 1994 and 1996 because of severe pain and other limitations caused by her spinal abnormalities. Tr. 613, 675. As she grew to adulthood, the persistent pain required the daily administrations of large amounts of narcotic pain medications, including Oxycodone and Morphine. Tr. 613, 626, 638, 653, 658. Plaintiff was assessed in school as having learning disabilities and had an annually adopted individual educational program (IEP) to address her mental limitations. Tr. 457-68. Assessments made in the course of Plaintiffs Social Security disability application noted mental limitations, concluding that she had "significant cognitive impairments" and "might experience difficulty in performing work-related tasks," particularly if she was assigned anything beyond "simple tasks." Tr. 205, 220, 506. Indeed, the Administrative Law Judge ultimately found that among Plaintiffs severe impairments was Borderline Intellectual Functioning[2] and that she was limited to "simple routine tasks." Tr. 105, 108.

         Plaintiff was under the care of Dr. Gregory Grabowski, a board certified orthopaedic surgeon. He documented her history of prior spinal fusion and "significant scoliotic deformity," which he concluded was the likely source of her pain." Tr. 675. Dr. Grabowski noted Plaintiffs worsening pain and the exacerbation of her symptoms with prolonged sitting and standing. Tr. 679. He determined that further back surgeries would likely not provide Plaintiff pain relief and referred her to pain management physicians to provide her relief from her constant pain. Tr. 675, 680. Thereafter, Plaintiff was prescribed significant doses of narcotic medications on a daily basis, including Morphine, and pain management physicians saw Plaintiff monthly to monitor her medication regime and to confirm the appropriateness of this chronic use of potent pain medications. Tr. 613, 621, 622, 625, 626, 630, 633, 634, 646, 653, 657. Dr. Grabowski made no secret of his opinion that Plaintiff was physically unable to sustain any type of full time work related activities. Tr. 672, 675.

         An administrative hearing was held on July 18, 2016, in which Plaintiff and a vocational expert testified. Plaintiff testified that she could not stand long enough to cook her child a meal or take a shower and quit a cosmetology program because she could not stand long enough to take the licensing exam. Tr. 165, 173, 178. The vocational expert was asked about the availability of jobs in the national economy which Plaintiff could perform with the provision that she could sit down every 45 minutes as needed. The hypothetical question posited by the ALJ also included a limitation to positions with "simple, routine tasks." Tr. 189-90. The vocational expert identified a number of positions that Plaintiff could perform, all but one requiring a Reasoning Development Level of Two. Tr. 191-95. The sole Level One position mentioned by the vocational expert, a laundry garment bagger, excluded persons in the bottom 10% percentile and ...

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