United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
J. GOSSETT UNITED STATES MAGISTRATE JUDGE.
social security matter is before the court for a Report and
Recommendation pursuant to Local Civil Rule 83.VII.02
(D.S.C.). The plaintiff, Benjamin Stiles Mikell, Jr., 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 defendant, Acting Commissioner of Social Security
(“Commissioner”), denying his claims for
Disability Insurance Benefits (“DIB”). Having
carefully considered the parties' submissions and the
applicable law, the court concludes that the
Commissioner's decision should be remanded for further
consideration as explained below.
SECURITY DISABILITY GENERALLY
42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant
to the regulations formulated by the Commissioner, the
plaintiff has the burden of proving disability, which is
defined as an “inability to do 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 months.” 20 C.F.R. §
404.1505(a); see also Blalock v.
Richardson, 483 F.2d 773 (4th Cir. 1973). The
regulations require the Administrative Law Judge
(“ALJ”) to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful
(2) whether the claimant has a “severe”
(3) whether the claimant has an impairment that meets or
equals the requirements of an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (“the Listings”),
and is thus presumptively disabled;
(4) whether the claimant can perform his past relevant work;
(5) whether the claimant's impairments prevent him from
doing any other kind of work.
20 C.F.R. § 404.1520(a)(4). If the ALJ can make a
determination that a claimant is or is not disabled at any
point in this process, review does not proceed to the next
this analysis, a claimant has the initial burden of showing
that he is unable to return to his past relevant work because
of his impairments. Once the claimant establishes a prima
facie case of disability, the burden shifts to the
Commissioner. To satisfy this burden, the Commissioner must
establish that the claimant has the residual functional
capacity, considering the claimant's age, education, work
experience, and impairments, to perform alternative jobs that
exist in the national economy. 42 U.S.C. § 423(d)(2)(A);
see also McLain v. Schweiker, 715 F.2d 866, 868-69
(4th Cir. 1983); Hall v. Harris, 658 F.2d 260,
264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d
1050, 1053 (4th Cir. 1980). The Commissioner may carry this
burden by obtaining testimony from a vocational expert.
Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir.
2012, Mikell applied for DIB, and later amended his
disability onset date to September 1, 2009. Mikell's
application was denied initially and upon reconsideration,
and he requested a hearing before an ALJ. A hearing was held
on June 24, 2014, at which Mikell appeared and testified, and
was represented by James D. Callahan, Esquire. After hearing
testimony from a vocational expert, the ALJ issued a decision
on July 21, 2014 finding that Mikell was not disabled from
September 1, 2009 through the date last insured of March 31,
2010. (Tr. 157-65.) The Appeals Council granted Mikell's
request for review and issued an order on December 5, 2015
vacating the hearing decision and remanding the case for
further proceedings. (Tr. 173-74.) The Appeals Council
instructed the ALJ to resolve the following issue:
• The hearing decision does not contain an evaluation of
the nontreating source opinion in Exhibit 14F at page 2
(March 17, 2010). In Exhibit 14F at page 2, consulting
examiner Norman Bettle, M.D., opines, among other things,
that the claimant can only work for 4 to 5 hours a day and
can only sit for 4 hours in a day. It is necessary to
evaluate Dr. Bettle's opinion in Exhibit 14F at page 2.
The Appeals Council also notes that Dr. Bettle's opinion
contains some unclear lifting restrictions. It is necessary
to obtain clarification of these restrictions from Dr.
Bettle. The Appeals Council also notes that the hearing
decision (Decision at page 6/paragraph 5) reports that, in a
different examination report, Dr. Bettle reported that the
claimant's symptoms may be aggravated by carrying 20
pounds (Exhibit 14F at pages 3 to 4-December 16, 2009). Dr.
Bettle, however, actually reported that the claimant's
symptoms may be aggravated by carrying items of 10 to 20
pounds. It is necessary to evaluate further Dr. Bettle's
opinion in Exhibit 14F at pages 3 to 4.
(Tr. 173.) The Appeals Council also directed the ALJ as
• Give further consideration to the claimant's
maximum residual functional capacity during the entire period
at issue and provide rationale with specific references to
evidence of record in support of assessed limitations (Social
Security Ruling 96-8p). In so doing, (1) obtain clarification
from Dr. Bettle regarding the lifting limitations indicated
in his opinion in Exhibit 14F at page 2, evaluate Dr.
Bettle's opinion in Exhibit 14F at page 2 pursuant to the
provisions of 20 CFR 404.1527 and Social Security Rulings
96-2p and 96-5p, ...