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Frans v. Saul

United States District Court, D. South Carolina

August 1, 2019

Terry Denise Frans, 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 Civil 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) 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).

         PROCEDURAL HISTORY

         In April 2015, Plaintiff filed an application for DIB, alleging an onset of disability date of November 20, 2014. [R. 203-04.] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 72-108, 116-19, 121-24.] Plaintiff requested a hearing before an administrative law judge (“ALJ”), and, on August 29, 2017, ALJ Jerry Faust conducted a video hearing on Plaintiff's claim. [R. 43-71.]

         The ALJ issued a decision on November 17, 2017, finding Plaintiff had been under a disability within the meaning of the Act from November 20, 2014, through March 1, 2016, with her disability ending on March 2, 2016. [R. 15-42.] At Step 1, [3] the ALJ determined that Plaintiff met the insured status requirements of the Act through December 31, 2019, and had not engaged in substantial gainful activity since November 20, 2014, the date she became disabled. [R. 23, Findings 1 & 2.] At Step 2, the ALJ found that, from November 20, 2014, through March 1, 2016, Plaintiff had the following severe impairments: rheumatoid arthritis; osteoarthritis of the right knee; and obesity. [R. 24, Finding 3.] The ALJ found that Plaintiff's alleged fibromyalgia was not a medically determinable impairment and that Plaintiff's anxiety, depression, and problems with focus and concentration due to fatigue were nonsevere. [R. 24-27.] At Step 3, the ALJ determined that, from November 20, 2014 through March 1, 2016, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 27, Finding 4.]

         Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ determined Plaintiff had the following residual functional capacity (?RFC”):

After careful consideration of the entire record, the from November 20, 2014 through March 1, 2016, the claimant had the residual functional capacity to perform a range of sedentary work as defined in 20 CFR 404.1567(a); such that she could occasionally reach overhead bilaterally; could occasionally use foot controls but with no more than ten pounds of pressure; could occasionally handle and finger; could occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds; could occasionally balance, stoop, kneel, crouch, and crawl; could no more than occasionally be exposed to extreme cold, extreme heat, wetness, humidity, vibration, and hazards; and required a cane to ambulate.

[R. 28, Finding 5.] At Step 4, the ALJ determined that, from November 20, 2014, through March 1, 2016, Plaintiff was unable to perform her past relevant work as a utilization review coordinator. [R. 32, Finding 6.] Further, considering Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert (“VE”), the ALJ found that from November 20, 2014, through March 1, 2016, there were no jobs that existed in significant numbers in the national economy that Plaintiff could have performed. [R. 33, Finding 10.] Consequently, the ALJ determined that Plaintiff was under a disability, as defined by the Act, from November 20, 2014, through March 1, 2016. [R. 33, Finding 11.]

         The ALJ noted, however, that Plaintiff's disability ended on March 2, 2016, that she had not developed any new impairments since that date, and that her severe impairments were the same as those present from November 20, 2014, through March 1, 2016. [R. 33, Finding 12.] The ALJ determined that, beginning March 2, 2016, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 33, Finding 13.] The ALJ concluded that medical improvement occurred as of March 2, 2016, the date Plaintiff's disability ended, and that medical improvement resulted in an increase in Plaintiff's RFC. [R. 33-34, Findings 14 and 15.]

         The ALJ determined that Plaintiff had the following RFC beginning March 2, 2016:

After careful consideration of the entire record, the undersigned finds that, beginning March 2, 2016, the claimant has had the residual functional capacity to perform a range of sedentary work as defined in 20 CFR 404.1567(a); such that she can occasionally reach overhead bilaterally; can occasionally use foot controls but with no more than ten pounds of pressure; can frequently but not constantly handle and finger; can occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds; can occasionally balance, stoop, kneel, crouch, and crawl; can no more than occasionally be exposed to extreme cold, extreme heat, wetness, humidity, vibration, and hazards; and requires a cane to ambulate.

[R. 34, Finding 16.] The ALJ then determined that Plaintiff remained unable to perform her past relevant work as a utilization review coordinator. [R. 35, Finding 17.] Considering Plaintiff's age, education, work experience, RFC, and VE testimony, however, the ALJ found that, beginning March 2, 2016, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 36, Finding 21.] Accordingly, the ALJ determined that Plaintiff's disability ended March 2, 2016, and that she had not become disabled again since that date. [R. 37, Finding 22.]

         Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined review. [R. 1-7.] Plaintiff filed this action for judicial review on September 7, 2018. [Doc. 1.]

         THE PARTIES' POSITIONS

         Plaintiff argues the ALJ's finding of medical improvement is arbitrary and not supported by medical evidence. [Doc. 17 at 21-23.] Plaintiff also argues the ALJ improperly weighed the opinion evidence provided by Dr. Boyd, which contained work-preclusive limitations. [Id. at 23-26.] Lastly, Plaintiff contends the Appeals Council improperly declined to consider new and material evidence. [Id. at 26-31.]

         The Commissioner, on the other hand, contends that substantial evidence supports the ALJ's finding of medical improvement on March 2, 2016, as well as his finding that Dr. Boyd's opinions were entitled to little weight. [Doc. 18 at 10-15.] The Commissioner also contends that the evidence provided to the Appeals Council did not justify a remand of this case. [Id. at 15-19.]

         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 Consol. 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).[4] 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).

         APPLICABL ...


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