United States District Court, D. South Carolina
Richard Mark Gergel, United States District Court Judge
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.
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).
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).
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).
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).
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.
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). 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).
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."
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 and that she was limited to "simple
routine tasks." Tr. 105, 108.
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.
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