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