United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
GORDON BAKER UNITED STATES MAGISTRATE JUDGE.
case is before the Court for a Report and Recommendation
pursuant to Local Rule 73.02(B)(2)(a), D.S.C., concerning the
disposition of Social Security cases in this District, and
Title 28, United States Code, Section 636(b)(1)(B). Plaintiff
Brian Howell (“Plaintiff”) brought this action
pursuant to Section 205(g) of the Social Security Act, as
amended, (42 U.S.C. § 405(g)), to obtain judicial review
of a final decision of the Commissioner of Social Security
Administration (the “Administration”) regarding
his claim for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) under Titles II and XVI of the Social
Security Act (the “Act”). For the reasons set
forth below, the undersigned recommends that the Court affirm
the Commissioner's decision.
FACTS AND ADMINISTRATIVE PROCEEDINGS
was 43 years old on his alleged disability onset date of
April 1, 2014. (R. at 20, 82, 90, 101, 110; Dkt. No. 9 at 4.)
Plaintiff alleged disability due to a back injury. (R. at 82,
90, 101, 110.) Plaintiff has past relevant work as an air
conditioner installer, pipe fitter, and framer. (Id.
at 29; Dkt. No. 9 at 4.)
filed an application for DIB on July 15, 2014, and an
application for SSI on June 26, 2014. (R. at 20, 98, 100,
119, 121; Dkt. No. 9 at 4.) His applications were denied
initially on August 27, 2014, and on reconsideration on
October 8, 2014. (R. at 20, 88-89, 96-97, 108-09, 117-18.)
After an initial hearing before the Administrative Law Judge
(“ALJ”) on June 22, 2016, (id. at
51-80), and a supplemental hearing on December 7, 2016,
(id. at 40-50), the ALJ issued a decision on April
4, 2017, and found that Plaintiff was not disabled
(id. at 20-31). The Appeals Council denied
Plaintiff's request for review, (id. at 1-4),
making the ALJ's decision the Commissioner's final
decision for purposes of judicial review.
making the determination that Plaintiff is not entitled to
benefits, the Commissioner has adopted the following findings
of the decision:
(1) The claimant meets the insured status requirements of the
Social Security Act through December 31, 2017.
(2) The claimant has not engaged in substantial gainful
activity since April 1, 2014, the alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: lumbar
degenerative disc disease, status post right ankle ORIF, and
S1 joint dysfunction (20 CFR 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination
of impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, I find
that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b), with the non-exertional limitations that he
cannot use ladders and can occasionally stoop, crawl, crouch,
(6) The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965).
(7) The claimant was born on March 17, 1971 and was 43 years
old, which is defined as a younger individual age 18-49, on
the alleged disability onset date (20 CFR 404.1563 and
(8) The claimant has a limited education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
(9) Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled, ” whether or
not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant No. in the national economy that
the claimant can perform (20 CFR 404.1569, 404.1569(a),
416.969, and 416.969(a)).
(11) The claimant has not been under a disability, as defined
in the Social Security Act, from April 1, 2014, through the
date of this decision (20 CFR 404.1520(g) and 416.920(g)).
(Id. at 22-30.)
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). The Act
also provides that SSI disability benefits shall be available
for aged, blind, or disabled persons who have income and
resources below a specific amount. See 42 U.S.C. § 1381
et seq. “Disability” is defined in the
Act 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” twelve months. See
42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. §
1382(a)(3)(A) (SSI context).
facilitate a uniform and efficient processing of disability
claims, the Act has by regulation reduced the statutory
definition of “disability” to a series of five
sequential questions. An examiner must consider whether the
claimant (1) is engaged in substantial gainful activity, (2)
has a severe impairment, (3) has an impairment which equals
an illness contained in the Administration's official
Listing of Impairments found at 20 C.F.R. Part 404, Subpart
P, Appendix 1, (4) has an impairment which prevents past
relevant work, and (5) has an impairment which prevents him
from doing substantial gainful employment. See 20 C.F.R.
§ 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI
context). If an individual is found not disabled at any step,
further inquiry is unnecessary. See 20 C.F.R. §
404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4)
(SSI context); see also Hall v. Harris, 658 F.2d 260
(4th Cir. 1981).
claimant bears the burden of proof with respect to the first
four steps of the analysis. Pass v. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995). Once the claimant has established
an inability to return to his past relevant work, the burden
shifts to the Commissioner to show that the
claimant-considering his age, education, work experience, and
residual functional capacity-can perform alternative jobs and
that such jobs exist in the national economy. See SSR 82-62,
1982 WL 31386, at *3; Grant v. Schweiker, 699 F.2d
189, 191 (4th Cir. 1983); see also Monroe v. Colvin,
826 F.3d 176, 180 (4th Cir. 2016). The Commissioner may
satisfy this burden by obtaining testimony from a vocational
expert. See Grant, 699 F.2d at 191-92.
scope of judicial review by the federal courts in disability
cases is narrowly tailored to determine whether the findings
of the Commissioner “are supported by substantial
evidence and whether the correct law was applied.”
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990); see also Woods v. Berryhill, 888 F.3d 686,
691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632,
634 (4th Cir. 2015); 42 U.S.C. § 405(g); 42 U.S.C.
§ 1383(c)(3). Consequently, the Act precludes a de novo
review of the evidence and requires that the court uphold the
Commissioner's decision as long as it is supported by
substantial evidence. Pyles v. Bowen, 849 F.2d 846,
848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g) and
Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986)); see also Mascio, 780 F.3d at 640; Bird
v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340
(4th Cir. 2012).
evidence is “more than a mere scintilla of evidence but
may be less than a preponderance.” Pearson v.
Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012)). “In reviewing for substantial evidence, [the
court does] not undertake to reweigh conflicting evidence,
make credibility determinations, or substitute [its] judgment
for that of the [ALJ].” Hancock, 667 F.3d at
472. “Where conflicting evidence allows reasonable
minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the [ALJ], ”
not on the reviewing court. Id. However, “[a]
factual finding by the ALJ is not binding if it was reached
by means of an improper standard or misapplication of the
law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th
contends that the ALJ erred in failing to properly evaluate
several aspects of his disability claim. First, Plaintiff
argues that the ALJ committed reversible error by discounting
Plaintiff's subjective complaints based on his failure to
obtain additional medical treatment. More specifically,
Plaintiff claims that the ALJ should have considered evidence
of Plaintiff's financial constraints and determined
whether such constraints affected Plaintiff's ability to
obtain medical care. (Dkt. No. 9 at 16-18.) Next, Plaintiff
claims that the ALJ failed to give proper weight to the
opinion of his treating physician, Dr. David Mitchell, M.D.
(Id. at 18-20.) Finally, Plaintiff claims that the
Appeals Council erred in failing to consider new evidence
submitted by Plaintiff in support of his appeal.
(Id. at 20-26.) The undersigned considers these
arguments in turn.
Consideration of Plaintiff's Subjective
evaluating a claimant's subjective symptoms, the ALJ
follows a two-step process under which he must first
determine whether there is an underlying medically
determinable physical or mental impairment that could
reasonably be expected to produce the claimant's pain or
other symptoms. Tyler v. Berryhill, No.
8:15-CV-04457-JDA, 2017 WL 461008, at *9 (D.S.C. Feb. 3,
2017). After determining the presence of an impairment, the
ALJ must evaluate the intensity, persistence, and limiting
effects of the claimant's symptoms to determine the
extent to which those symptoms limited his functioning.
Id. at *10.
evaluating a claimant's symptoms, the decision
“must contain specific reasons for the weight given to
the individual's symptoms, be consistent with and
supported by the evidence, and be clearly articulated so the
individual and any subsequent reviewer can assess how the
adjudicator evaluated the individual's symptoms.”
SSR 16-3p, 2017 WL 5180304, at *9.Specifically, the ALJ's
decision must “consider all of the evidence in an
individual's record, ” including but not limited
to, the claimant's daily activities; the location,
duration, frequency, and intensity of the claimant's pain
or other symptoms; factors that precipitate and aggravate the
symptoms; the type, dosage, effectiveness, and side effects
of any medication the claimant takes or has taken to
alleviate pain or other symptoms; treatment, other than
medication, the claimant receives or has received for relief
of pain or other symptoms; any measures other than treatment