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(b)(1)(B). Plaintiff brought this action
pursuant to 42 U.S.C. § 405(g) 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”).
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. § 405(g).
April 2014, Plaintiff filed an application for DIB, alleging
an onset of disability date of March 7, 2014. [R. 245-46.]
The claim was denied initially and on reconsideration by the
Social Security Administration (“the
Administration”). [R. 141-70, 176-79.] Plaintiff
requested a hearing before an administrative law judge
(“ALJ”), and, on January 20, 2017, ALJ Gregory M.
Wilson conducted a de novo hearing on Plaintiff's claim.
issued a decision on February 22, 2017, finding Plaintiff not
disabled. [R. 74-101.] At Step 1,  the ALJ found Plaintiff met
the insured status requirements of the Social Security Act
(?the Act”) through December 31, 2018, and had not
engaged in substantial gainful activity since March 7, 2014,
the alleged onset date. [R. 79, Findings 1 & 2.] At Step
2, the ALJ found Plaintiff had severe impairments of bursitis
of the hip; status post-rotator cuff surgery; degenerative
disc disease of the cervical and lumbar spine; diabetes
mellitus; depression; and anxiety. [R. 80, Finding 3.] The
ALJ also noted that Plaintiff had a non-severe impairment of
obesity and that Plaintiff's reported carpal tunnel
syndrome, diverticulitis, and heel spurs were non-medically
determinable impairments because the medical evidence of
record did not contain a diagnosis of these impairments from
an acceptable medical source. [R. 80.] At Step 3, the ALJ
found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the impairments listed at 20 C.F.R. Part
404, Subpart P, Appendix 1. [R. 80, Finding 4.]
addressing Step 4, Plaintiff's ability to perform her
past relevant work, the ALJ found Plaintiff retained the
following residual functional capacity (“RFC”):
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) except the claimant can occasionally lift
twenty pounds; frequently lift ten pounds; stand and walk two
out of eight hours; sit six out of eight hours; occasionally
push/pull with the upper extremity; occasionally push/pull
with the lower extremity; occasionally climb, balance, stoop,
kneel, crouch, and crawl; occasionally climb ladders, ropes,
and scaffolds; frequently reach with the left upper
extremity; frequently reach overhead; avoid concentrated
exposure to hazards; and never have contact with the public.
[R. 83, Finding 5.] Based on this RFC finding, the ALJ
determined at Step 4 that Plaintiff was unable to perform her
past relevant work as an administrative assistant. [R. 93,
Finding 6.] Considering Plaintiff's age, education, work
experience, RFC, and the testimony of a vocational expert
(“VE”), the ALJ found that there were jobs that
existed in significant numbers in the national economy that
Plaintiff could perform. [R. 94, Finding 10.] Accordingly,
the ALJ found Plaintiff had not been under a disability, as
defined by the Act, from March 7, 2014, through the date of
the decision. [R. 95, Finding 11.]
requested Appeals Council review of the ALJ's decision,
but the Council declined review. [R. 1-7.] Plaintiff filed
this action for judicial review on April 12, 2018. [Doc. 1.]
contends the ALJ's decision is not supported by
substantial evidence and that the case should be remanded.
[Doc. 12.] Specifically, Plaintiff contends the ALJ failed to
adequately support his RFC finding Plaintiff capable of light
versus sedentary work [id. at 22-26] and failed to
properly explain his consideration of Plaintiff's alleged
limitations and symptoms in accordance with SSR 16-3p
[id. at 27-31]. Plaintiff also contends the Appeals
Council failed to properly consider new evidence that might
have affected the Commissioner's final decision.
[Id. at 32-37].
Commissioner, on the other hand, contends that the ALJ
applied the correct legal standards and that substantial
evidence supports the ALJ's finding that Plaintiff is not
disabled within the meaning of the Act. [Doc. 13.] The
Commissioner argues that the ALJ reasonably found Plaintiff
limited to light work [id. at 11-19] and properly
analyzed Plaintiff's subjective complaints [id.
at 19-23]. The Commissioner further contends that the Appeals
Council properly declined to review the new evidence.
[Id. at 23-27.]
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 Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1966) (“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 ‘substantial
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). Shalala v. Shaefer, 509 U.S. 292, 296
(1993). 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. Melkonyan v. Sullivan, 501 U.S. 89,
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 . . . .
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 U.S.C.
§ 423(a). “Disability” is defined as:
the inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than 12 consecutive months.
Id. § 423(d)(1)(A).
The Five Step Evaluation
facilitate uniform and efficient processing of disability
claims, federal regulations have reduced the statutory
definition of disability to a series of five sequential
questions. See, e.g., Heckler v. Campbell,
461 U.S. 458, 461 n.2 (1983) (noting a “need for
efficiency” in considering disability claims). The ALJ
must consider whether (1) the claimant is engaged in
substantial gainful activity; (2) the claimant has a severe
impairment; (3) the impairment meets or equals an impairment
included in the Administration's Official Listings of
Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4)
the impairment prevents the claimant from performing past
relevant work; and (5) the impairment prevents the claimant
from having substantial gainful employment. 20 C.F.R. §
404.1520. Through the fourth step, the burden of production
and proof is on the claimant. Grant v. Schweiker,
699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove
disability on or before the last day of her insured status to
receive disability benefits. Everett v. Sec'y of
Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir.
1969). If the inquiry reaches step five, the burden shifts to
the Commissioner to produce evidence that other jobs exist in
the national economy that the claimant can perform,
considering the claimant's age, education, and work
experience. Grant, 699 F.2d at 191. If at any step
of the evaluation the ALJ can find an individual is disabled
or not disabled, further inquiry is unnecessary. 20 C.F.R.
§ 404.1520(a); Hall v. Harris, 658 F.2d 260,
264 (4th Cir. 1981).
Substantial Gainful Activity
gainful activity” must be both substantial-involves
doing significant physical or mental activities, 20 C.F.R.
§ 404.1572(a)-and gainful-done for pay or profit,
whether or not a profit is realized, id. §
404.1572(b). If an individual has earnings from employment or
self-employment above a specific level set out in the
regulations, he is ...