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Abstance v. Berryhill

United States District Court, D. South Carolina, Orangeburg Division

February 19, 2019

Misty Nicole Abstance, Plaintiff,
Nancy Berryhill, Acting Commissioner of Social Security Administration, Defendant.



         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 Disability Insurance Benefits ("DIB") and 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 January 14, 2019, recommending that the Court affirm the decision of the Commissioner. (Dkt. No. 18). Plaintiff filed objections to the R & R and the Commissioner filed a reply (Dkt. Nos. 19, 21). As explained more fully below, the Court reverses the decision of the Commissioner and remands the matter to the agency for further action consistent with this order.

         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).


         The record demonstrates that Plaintiff has severe limitations on her capacity to perform full time employment due to her multiple severe mental and physical impairments. The Adminstrative Law Judge ("ALJ") determined that Plaintiff retained, just barely, the RFC to perform less than the full scope of sedentary work, the lowest possible level of function that would render a claimant in her age group non-disabled. There is no question that once she reaches 50 years of age, which is in slightly more than three years, she will be deemed disabled. In such a marginal case, the Court certainly has the duty to scrutinize the record and the controlling legal standards because the slightest legal error might tip the balance toward disability.

         1. The Commissioner has failed to carry her burden at Step Five that there exists jobs in significant numbers in the national marketplace Plaintiff can perform.

         The ALJ identified the following as Plaintiffs severe impairments: status post left knee patella fracture with open reduction and internal fixation, obesity, anxiety, depression, and adjustment disorder with anxious mood. Tr. 16. In an effort to address Plaintiffs complaints of chronic knee and hip pain, which impaired her ability to sit and stand for prolonged periods, the ALJ recognized in the claimant's RFC (1) a limitation to sedentary work; (2) a sit/stand option every hour; (3) occasional use of a cane; and (4) no use of the left foot or leg. Tr. 18. Additionally, to address Plaintiffs "mental impairments", the RFC included: (1) restriction to simple, routine, repetitive tasks; (2) instructions that she can "understand, remember, and carry out" such simple, routine, and repetitive job tasks; and (3) breaks for 15 minutes in the first half and second half of the work day and 30 minutes at midday. Tr. 18-19. In his hypothetical question to the Vocational Expert, the ALJ made it clear that the claimant "is going to be restricted to performing simple, routine, repetitive tasks; she can understand, remember, and carry out instructions related to simple, routine, repetitive job duties ..." Tr. 61.

         Despite these extensive limitations on the scope of duties Plaintiff could perform, the Vocational Expert identified three different job categories Plaintiff could perform. All involved sedentary work requiring a Reasoning Level of 2. Tr. 62-63. These included jobs as an Eye Dropper Assembler, DOT 739.687-086, 1991 WL 680194 (1991); Addresser, DOT 209.587.010, 1991 WL 671797 (1991); and Label Pinker, DOT 585.685-062, 1991 WL 684400 (1991).

         A significant legal issue is raised by the Commissioner's sole reliance here on Level 2 positions to meet her burden at Step Five of the Sequential Process. The DOT identifies six levels of jobs based upon reasoning ability. Level 1 requires the ability to "apply commonsense understanding to carry out simple one-or two-step instructions." Dictionary of Occupational Titles, Appendix C, 1991 WL 688702 at * 2 (1991) (emphasis added). Level 2 positions require the ability to "apply commonsense understanding to carry out detailed but uninvolved written or oral instructions." Id. (emphasis added).

         Where there is an apparent unresolved conflict between the testimony of the Vocational Expert and the DOT, Social Security rules require the ALJ to (1) identify any apparent unresolved conflict between the Vocational Expert and the DOT and (2) elicit from the Vocational Expert a reasonable explanation for the conflict before relying on the vocational expert's testimony. SSR 00-04p, 2000 WL 1898704 at *2. The failure for the ALJ to perform his responsibilities under SSR 00-04p is no small matter. Since the Commissioner carries the burden at Step Five of the sequential process and Vocational Expert testimony is necessary to address a RFC inconsistent with the requirements of the DOT, the failure to resolve the conflict between the vocational expert's testimony and the DOT leaves the Commissioner without substantial evidence to meet her burden at Step Five. See Pearson v. Colvin, 810 F.3d at 209-10 ("[I]f the ALJ does not elicit this explanation, then the expert's testimony cannot provide ...

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