United States District Court, D. South Carolina
Richard Mark Gergel United States District Judge.
has brought this action pursuant to 42 U.S.C. § 405(g)
seeking judicial review of the final decision of the
Commissioner of Social Security denying her claim for
Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI"). In accordance
with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 DSC,
this matter was referred to a United States Magistrate Judge
for pre-trial handling. The Commissioner moved to have the
agency decision reversed and remanded for further
administrative processing. (Dkt. No. 11). Thereafter, the
Magistrate Judge issued a Report and Recommendation ("R
& R") on August 2, 2019, recommending that this
matter be reversed and remanded for further administrative
proceedings to address issues raised by the recent decision
of Thomas v. Berryhill, 916 F.3d 307, 314 (4th Cir.
2019). No. party filed objections to the R & R.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo
determination of those portions of the R & R to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. See 28 U.S.C. § 636(b)(1).
role of the federal judiciary in the administrative scheme
established by the Social Security Act is a limited one. The
Act provides that the "findings of the Commissioner of
Social Security as to any fact, if supported by substantial
evidence, shall be conclusive." 42 U.S.C. § 405(g).
"Substantial evidence has been defined innumerable times
as more than a scintilla, but less than preponderance."
Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir.
1964). This standard precludes de novo review of the
factual circumstances that substitutes the Court's
findings of fact for those of the Commissioner. See Vitek
v. Finch, 438 F.2d 1157 (4th Cir. 1971).
the federal court's review role is a limited one,
"it does not follow, however, that the findings of the
administrative agency are to be mechanically accepted. The
statutorily granted right of review contemplates more than an
uncritical rubber stamping of the administrative
action." Flack v. Cohen, 413 F.2d 278, 279 (4th
Cir. 1969). Further, the Commissioner's findings of fact
are not binding if they were based upon the application of an
improper legal standard. See Coffman v. Bowen, 829
F.2d 514, 519 (4th Cir. 1987).
Commissioner, in passing upon an application for disability
benefits, is required to undertake a five-step sequential
process. At Step One, the Commissioner must determine whether
the claimant is engaged in substantial gainful work. If the
claimant is not engaged in substantial gainful employment,
the Commissioner proceeds to Step Two, which involves a
determination whether the claimant has a "severe
medically determinable physical or mental impairment."
If the claimant has one or more severe impairments, the
Commissioner proceeds to Step Three, which involves a
determination whether any impairment satisfies one of the
designated list of impairments that would automatically
render the claimant disabled. Where a claimant does not
satisfy one of the listed disabling impairments, the
Commissioner must proceed to Step Four, which involves a
determination of the claimant's RFC. Once the RFC is
determined, the Commissioner proceeds to Step Five to
determine if jobs exist in significant numbers in the
national economy that the claimant can perform in light of
her RFC. 20 C.F.R. § 404.1520(a)(4). The claimant
carries the burden of establishing the requirements of Steps
One through Step Four, but at Step Five the burden shifts to
the Commissioner. If the Commissioner fails to carry her
burden at Step Five, the claimant is entitled to a finding of
disability as a matter of law. See Pearson v.
Colvin, 810 F.3d 204, 209-10 (4th Cir. 2015).
the regulations of the Social Security Administration, the
Commissioner is obligated to consider all medical evidence
and the opinions of all medical sources, including treating
physicians. 20 C.F.R. § 404.1527(b). This includes the
duty to "evaluate every medical opinion we
receive." Id. § 404.1527(c). Under what is
commonly referred to as the Treating Physician Rule, the
Commissioner is required to give special consideration to the
opinions of treating physicians of the claimant, based on the
view that "these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal
picture of [the claimant's] medical impairment(s) and may
bring a unique perspective to the medical evidence that
cannot be obtained from objective medical findings alone or
from reports of individual examinations, such as consultative
examinations or brief hospitalizations." Id.
§ 404.1527(c)(2). Under some circumstances, the opinions
of the treating physicians are to be accorded controlling
weight. Even where the opinions of the treating physicians of
the claimant are not accorded controlling weight, the
Commissioner is obligated to weigh those opinions in light of
a broad range of factors, including the examining
relationship, the treatment relationship, length of
treatment, nature and extent of the treatment relationship,
supportability of the opinions in the medical record,
consistency, and whether the treating physician was a
specialist. Id. §§ 404.1527(c)(1)-(5). The
Commissioner is obligated to weigh the findings and opinions
of treating physicians and to give "good reasons"
in the written decision for the weight given to a treating
source's opinions. SSR 96-2P, 61 Fed. Reg. 34490, 34492
(July 2, 1996). Further, all medical opinions must be weighed
under the standards of the Treating Physician Rule, including
the opinions of non-treating and non-examining physicians. 20
C.F.R. § 404.1527(c), (e)(1)(ii).
recent years, an issue has arisen concerning whether a
claimant's RFC limited to "simple instructions"
is consistent with jobs that have a Reasoning Level of 2.
Under the Dictionary of Occupational Titles, a position with
a Reasoning Level of 2 requires the ability to "apply
commonsense understanding to carry out detailed but
uninvolved written or oral instructions." Dictionary of
Occupational Titles, Appendix C, 1991 WL 688702 (emphasis
added). A position with a Reasoning Level 1 requires the
ability to "apply commonsense understanding to carry out
simple one- or two-step instructions."
Id. (emphasis added). This issue was addressed in
Thomas v. Berryhill, 916 F.3d 307, 313-14 (4thCir.
2019), which found that a RFC limited to "short, simple
instructions" was in "apparent conflict" with
a Reasoning Level 2 position. The Fourth Circuit concluded
that since there might be circumstances where "short,
simple instructions" might still fall with a Reasoning
Level 2 position, it was unwilling to create a
"categorical rule" that all such limitations
required only Reasoning Level 1 positions. Instead, the
Fourth Circuit required under the facts of Thomas
that the decision be reversed and remanded to the agency to
address this "apparent conflict." Id. at
application for disability benefits has a protracted history.
Plaintiff first filed for benefits on September 29, 2009.
This Court reversed the Commissioner's first decision in
this matter on February 14, 2014 and remanded the case for
further administrative action. (Dkt. No. 9-2). Plaintiff then
experienced four more years of delay before then matter
returned to the District Court on an appeal from a second
denial of disability benefits. In total, this application is
now approaching a decade of administrative and judicial
processing. The Commissioner now requests still another
remand for further administrative processing.
Magistrate Judge is certainly correct that there is an
apparent conflict in the testimony of the Vocational Expert
and the DOT. The Vocational Expert identified three different
jobs which Plaintiff was reportedly qualified to perform
notwithstanding her severe impairments of schizophrenia and
depression. Each of these positions has a Reasoning Level of
2. In this case, the Plaintiffs RFC was even more restrictive
than in Thomas, limiting Plaintiff to "work
requiring only understanding, remembering, and carrying out
simple instructions." Tr. 524. Thus, according to the
Plaintiffs RFC, she is limited to performing only jobs with
"simple instructions" that she can (a) understand;
(b) remember; and (c) carry out.
Five of the sequential process, the Commissioner carries the
burden of establishing that there are sufficient jobs in the
national marketplace in which Plaintiff is able to perform in
light of her RFC. In other words, is the Plaintiff, with her
documented mental impairments, capable of performing jobs at
Reasoning Level 2, which require the capacity to follow
"detailed but uninvolved written or oral
instructions?" If there is not substantial evidence in
the record to support a finding that Plaintiff is capable of
following detailed instructions, the Commissioner would not
be able to carry his burden at Step Five, and Plaintiff would
be entitled to a finding of disability as a matter of law.
issue is complicated by the fact that the Administrative Law
Judge ("ALJ") rejected the opinions of Plaintiff s
two treating psychiatrists (Dr. Kellie Bishop and Dr. Richard
Ford) and one consulting psychologist (Dr. Scott Shaffer),
contending that their opinions that Plaintiffs significant
mental impairments made her incapable of sustaining full time
work were inconsistent with their treatment records. Tr.
529-531. A review of the records of these treating and
consulting physicians indicates, however, that their ...