United States District Court, D. South Carolina, Anderson/Greenwood Division
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 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 claims for disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”). 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.
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.]
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.
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.]
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.]
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
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,
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.
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.]
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. [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.]
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.]
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 ...