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Jackson v. Saul

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

July 26, 2019

Gray Helms Jackson, Plaintiff,
v.
Andrew Saul[1], Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          Jacquelyn D. Austin United States Magistrate Judge.

         This matter is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B).[2] 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 claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”).[3] For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for an award of benefits for the relevant time period at issue in this matter.

         PROCEDURAL HISTORY

         In March 2011, Plaintiff filed applications for DIB and SSI, alleging disability beginning February 25, 2011. [R. 192-201.] The claims were denied initially and upon reconsideration by the Social Security Administration (“the Administration”). [R. 68-79, 82-109.] Plaintiff filed a request for hearing before an administrative law judge (“ALJ”), and, on June 20, 2013, ALJ Clinton C. Hicks conducted a hearing on Plaintiff's claims. [R. 35-65.]

         On September 13, 2013, the ALJ issued his decision, finding Plaintiff not disabled. [R. 18-28.] Plaintiff filed a request for review of the ALJ's decision with the Appeals Council, which denied review on November 13, 2014. [R. 1-6.] Plaintiff commenced an action for judicial review in this Court on December 31, 2014, and, on January 27, 2016, this Court remanded the matter to the Commissioner. [R. 585-616.] Plaintiff filed a subsequent application for a period of disability and DIB as well as SSI on August 9, 2015. [R. 457.]

         On December 8, 2015, the Commissioner issued a favorable determination finding Plaintiff's disability began on August 1, 2015. [R. 581-84.] The State agency medical consultant in this subsequent claim opined that Plaintiff could perform a range of simple, unskilled, light work that does not involve ongoing interaction with the general public. [R. 545-80.] The State agency noted Plaintiff turned 55 on January 27, 2016, and applied the borderline age regulation to find Plaintiff was disabled beginning August 1, 2015. [R. 561.] Thus, the relevant period of adjudication is from Plaintiff's alleged onset date of February 25, 2011, through July 31, 2015. [R. 457.]

         The Appeals Council issued an Order remanding the case to the ALJ for further proceedings, directing the ALJ to evaluate Plaintiff's mental impairments and the opinions of Dr. Goldsmith, Dr. Waller, and Dr. Mika, as well as Lisa Fowler, a clinical social worker. [R. 619-23.] Plaintiff testified before the ALJ in a subsequent hearing on December 7, 2016, [R. 482-511], and, on March 8, 2017, the ALJ issued a second unfavorable decision finding Plaintiff had not been under a disability within the meaning of the Act from February 25, 2011, through July 31, 2015. [R. 457-72.]

         At Step 1[4], the ALJ found Plaintiff last met the insured status requirements of the Social Security Act (“the Act”) on September 30, 2017, and had not engaged in substantial gainful activity since February 25, 2011, the alleged onset date. [R. 460, Findings 1 & 2.] At Step 2, the ALJ found that Plaintiff had the following severe impairments: viral hepatitis, possible hepatic encephalopathy, grade II, stage II to III septal fibrosis, osteoarthritis of the bilateral knees, status post right total knee arthroplasty, chronic GERD, atrial fibrillation, status post pacemaker implantation, sick sinus syndrome, chronic hypertension, as well as depression, generalized anxiety disorder, and a bipolar disorder. [R. 460, Finding 3.][5] At Step 3, the ALJ determined Plaintiff's impairments or combination of impairments did not meet or medically equal the severity of one of the listed impairments. [R. 460-62, Finding 4.]

         Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ found that 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) and 416.967(b) except he is to have a sit/stand option with the ability to change position twice an hour. He is not to climb any ladders, ropes or scaffolds, but he can occasionally climb ramps and stairs. He is to avoid concentrated exposure to unprotected heights. Further, he can stay on task for two hours at a time and he is limited to simple, routine, repetitive tasks in a low stress environment, defined as no constant change in routine with no crisis situations and no complex decision-making.

[R. 462, Finding 5.] Based on this RFC, at Step 4, the ALJ determined Plaintiff was unable to perform any of his past relevant work. [R. 470, Finding 6.] The ALJ found that, considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert (“VE”), there were jobs that exist in significant numbers in the national economy that Plaintiff could perform. [R. 471, Finding 10.] Thus, the ALJ found that Plaintiff had not been under a disability, as defined by the Act, from February 25, 2011, through July 31, 2015. [R. 472, Finding 11.] Additionally, the ALJ found that, based on the application for SSI protectively filed on March 31, 2011, Plaintiff was not disabled under § 1614(a)(3)(A) of the Act. [Id.] The ALJ directed that the finding of disability as of August 1, 2015, was not disturbed. [Id.]

         Plaintiff requested Appeals Council review of the ALJ's decision, but the Appeals Council declined review. [R. 434-40.] Plaintiff filed an action for judicial review on August 2, 2018. [Doc. 1.]

         THE PARTIES' POSITIONS

         Plaintiff contends the ALJ's decision is not supported by substantial evidence and contains multiple legal errors warranting the reversal and remand of the case. [Doc. 12.] Specifically, Plaintiff contends the ALJ failed to properly weigh the medical evidence of record in determining Plaintiff's RFC.[6] [Id. at 10-15.] Plaintiff also argues that the ALJ failed to properly evaluate Plaintiff's testimony that he is unable to work due to his mental impairments in accordance with SSR 16-3p. [Id. at 16-18.] Lastly, Plaintiff contends that there is conflict between the VE's testimony and the DOT based on a flawed hypothetical that failed to include Plaintiff's moderate limitations in interacting with others and a moderate limitation in concentration, persistence, or pace. [Id. at 18-21.] Plaintiff requests that this Court reverse this matter solely for a calculation and award of benefits for the period at issue in this case, February 25, 2011, through July 31, 2015. [Id. at 21.]

         The Commissioner contends the ALJ's decision should be affirmed because there is substantial evidence of record that supports the Commissioner's final decision that Plaintiff's mental impairment did not preclude him from performing other light work in the national economy. [Doc. 14.] Specifically, the Commissioner contends the ALJ adequately considered the medical opinions in determining Plaintiff's RFC and, to the extent the ALJ made an error in discussing the evidence and assigning weight to the medical opinions, remand is not warranted because the ALJ's determination would not change. [Id. at 10-13.] The Commissioner also argues that the ALJ adequately considered Plaintiff's testimony. [Id. at 13-14.] Lastly, the Commissioner contends there is no conflict between the VE's testimony and Plaintiff's ability to perform simple, routine, and repetitive tasks because it is compatible with the mental demands of a laundry sorter. [Id. at 15-17.]

         STANDARD OF REVIEW

         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 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 ‘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). 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 (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).[7] 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).

         APPLICABLE LAW

         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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