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Stevenson v. Berryhill

United States District Court, D. South Carolina, Anderson/Greenwood Division

April 11, 2019

Meneshia Loraine Stevenson, Plaintiff,
Nancy A. Berryhill, Commissioner of Social Security, Defendant.



         This 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).[1] Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) 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”) and supplemental security income (“SSI”).[2]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).


         In March 2014, Plaintiff filed an application for DIB alleging an onset-of-disability date of November 1, 2010 [R. 244-51], and in May 2015, she filed an application for SSI.[3]The claims were denied initially [R. 130-34] and upon reconsideration [R. 137-41] by the Social Security Administration (“the Administration”). Thereafter, Plaintiff filed a written request for hearing and, on April 12, 2017, appeared with an attorney and testified in a video hearing before Administrative Law Judge (“ALJ”) William Wallis. [R. 40-73; see also R. 21.]

         The ALJ issued a decision on June 15, 2017, finding Plaintiff not disabled under the Social Security Act (“the Act”). [R. 21-34.] At Step 1, [4] the ALJ found Plaintiff met the insured status requirements of the Act through March 31, 2019, and had not engaged in substantial gainful activity since November 1, 2010, the alleged onset date. [R. 24, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had severe impairments of affective mood disorder, osteoarthritis, and disorder of the back. [R. 24, Finding 3.] The ALJ also found that Plaintiff had non-severe impairments of elevated CPK sedimentation rate, hypertension, and obesity. [R. 24-25.] At Step 3, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 25, Finding 4.]

         Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ assessed Plaintiff's residual functional capacity (“RFC”) and found as follows:

After careful consideration of the entire record, I find that the claimant has the residual functional capacity to lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; can stand and/or walk for six hours in an eight-hour workday; and can sit for six hours in an eight-hour workday. She can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, but should never climb ladders, ropes, and scaffolds. She needs to avoid more than occasional exposure to extreme cold, unprotected heights, dangerous machinery, and vibration. She retains the mental residual functional capacity to understand, remember, and carry[]out simple tasks and instructions; she can concentrate, attend, and/or persist for simple tasks during the workday; she can interact adequately with supervisors and coworkers, but should interact no more than occasionally with the general public; and she can respond appropriately to routine workplace changes. These limitations are based on the State agency consultant's assessment at [R. 94-107]. This represents a reduction of the State agency consultants' opinions supported by the record generally. [R. 109.]

[R. 27, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform her past relevant work as a cashier, membership services worker, mortgage analyzer, sales associate, or work flow clerk. [R. 32, Finding 6.] However, based on Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert (“VE”), the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform [R. 33, Finding 10], namely, laundry aid (302.685-010), inspector (559.687-074), and stuffer (780.684-066) [R. 33]. Accordingly, the ALJ concluded Plaintiff had not been under a disability, as defined in the Act, from November 1, 2010, through the date of the ALJ's decision. [R. 33, Finding 11.]

         Plaintiff requested Appeals Council review of the ALJ's decision, and the Appeals Council declined. [R. 1-6.] Plaintiff filed the instant action for judicial review on April 20, 2018. [Doc. 1.]


         Plaintiff contends that errors by the ALJ require the decision to be remanded for an award of benefits or, in the alternative, additional administrative proceedings. [Doc. 18.] Specifically, Plaintiff argues there is an apparent conflict between the RFC limiting Plaintiff to simple, routine work and the ALJ's finding that Plaintiff can perform work that has a GED reasoning code 2 or 3. [Id. at 15-16.] Plaintiff also contends the ALJ improperly weighed the medical source opinion evidence [id. at 16-20]; failed to account for Plaintiff's moderate difficulties in concentration, persistence and pace in assessing the RFC [id. at 21-24]; failed to account for Plaintiff's leg pain [id. at 24-26]; and failed to conduct an evaluation of Plaintiff's symptoms in accordance with SSR 16-3p [id. at 26-29].

         The Commissioner contends the decision is supported by substantial evidence and should be affirmed. [Doc. 21.] The Commissioner argues the ALJ properly considered the opinion evidence of record [id. at 6-14]; accounted for Plaintiff's established physical and mental limitations in the RFC findings [id. at 14-20]; properly accounted for Plaintiff's leg condition in the RFC [id. at 20-22]; and properly evaluated Plaintiff's subjective allegations in accordance with SSR 16-3p [id. at 22-24]. The Commissioner also maintains that the Plaintiff's Step 5 challenge related to an apparent unresolved discrepancy between the VE's testimony and the RFC lacks merit as there was no apparent conflict. [Id. at 24-28.]


         The 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) (citing Woolridge v. Celebrezze, 214 F.Supp. 686, 687 (S.D. W.Va. 1963))(“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 evidence.'”).

         Where 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).

         The 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).

         The 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. Schaefer, 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, 102 (1991).

         In 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 . . . .

42 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).[5] 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).


         The Act 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 ...

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