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) 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”). 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).
February 2015, Plaintiff filed an application for DIB,
alleging an onset of disability date of November 24, 2014.
[R. 147-48.] The claim was denied initially and upon
reconsideration. [R. 96-99; 104-09.] Thereafter, Plaintiff
requested a hearing before an Administrative Law Judge
(“ALJ”), and, on August 23, 2017, ALJ Colin Fritz
conducted a de novo hearing on Plaintiff's claim. [R.
issued a decision on December 19, 2017, finding that
Plaintiff was not disabled under the Social Security Act
(“the Act”). [R. 13-26.] At Step 1,
ALJ found that Plaintiff met the insured status requirements
of the Act through December 31, 2019, and had not engaged in
substantial gainful activity since November 24, 2014, the
alleged onset date. [R. 15, Findings 1 & 2.] At Step 2,
the ALJ found that Plaintiff had severe impairments of:
cervical degenerative disc disease, status-post C3/4 fusion;
idiopathic neuropathy; obesity; left AC shoulder joint
dislocation; and leg length discrepancy. [R. 15, Finding 3.]
The ALJ also found that Plaintiff had non-severe impairments
of benign essential hypertension, attention deficit disorder,
major depressive disorder, and anxiety. [Id.] At
Step 3, the ALJ found Plaintiff did not have an impairment or
combination of impairments that meets or medically equals one
of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. [R. 16, Finding 4.]
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:
[T]he claimant has the residual functional capacity to
perform no more than light work as defined in 20 C.F.R.
404.1567(b) working in two hour increments during an 8 hour
work day with normal breaks; occasional climbing ladders,
ropes or scaffolds; occasional crawling; frequent climbing of
ramps or stairs; frequent balancing, stooping, kneeling and
crouching; only occasional bilateral overhead reaching with
frequent handling, fingering, and feeling on the dominant
right hand; occasional exposure to hazards such as
unprotected heights or dangerous machinery; with the
abilities to maintain pace for simple repetitive tasks in low
stress environments free of fast-paced or team dependent
production requirements and involving simple work-related
decisions and only occasional independent judgment skills or
[R. 18, Finding 5.] Based on this RFC, the ALJ determined at
Step 4 that Plaintiff was unable to perform her past relevant
work as an inspector or home attendant. [R. 23, 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. 23, Finding 10.]
Accordingly, the ALJ concluded that Plaintiff had not been
under a disability, as defined in the Act, from November 24,
2014, through the date of the decision. [R. 25, Finding 11.]
requested Appeals Council review of the ALJ's decision,
but the Appeals Council declined review. [R. 1-6.] Plaintiff
filed an action for judicial review on July 16, 2018. [Doc.
contends that the ALJ committed error, requiring the decision
to be remanded for additional administrative proceedings.
[Doc. 14.] Specifically, Plaintiff argues the ALJ failed to
weigh the opinion of Plaintiff's physical therapist, who
gave her neck a disability score of 52%, which is
“synonymous with an individual suffering form pain
significant enough to interfere with her ability to perform
activities of daily living.” [Id. at 4.]
Further, Plaintiff argues the ALJ failed to resolve a
conflict between the DOT and the VE's testimony that
Plaintiff could perform the jobs identified in light of her
restriction on reaching. [Id. at 6.] Plaintiff
contends that, because the ALJ failed to carry his burden at
step 5 to show that other jobs exist in significant numbers
that Plaintiff could perform, the matter should be reversed.
Commissioner, on the other hand, contends the ALJ's
decision is supported by substantial evidence and should be
affirmed. [Doc. 17.] The Commissioner argues that the ALJ
fully considered and discussed the records from Pro Physical
Therapy, which included the neck disability rating, in his
decision finding that Plaintiff was not disabled within the
meaning of the Act. [Id. at 13.] Further, the
Commissioner argues the ALJ followed controlling regulations
and applicable rulings in resolving any apparent conflict
between the restrictions of the RFC of occasional overhead
reaching and the jobs identified by the VE. [Id. at
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 Consolidated 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
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). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir.
1991) (unpublished table decision). 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. Sargent, 941 F.2d 1207
(citing Melkonyan v. Sullivan, 501 U.S. 89, 102
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). 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 ...