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 Civil 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 claim 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 administrative action consistent with this
recommendation, pursuant to sentence four of 42 U.S.C. §
February 2017, Plaintiff filed applications for DIB and SSI,
both alleging an onset of disability date of March 17, 2016.
[R. 234-237; 227-233.] The claims were denied initially and
upon reconsideration. [R. 101-120; 124-153]. Thereafter,
Plaintiff requested a hearing before Administrative Law Judge
(“ALJ”), and, on March 28, 2018, ALJ Christine
Guard conducted a de novo hearing on Plaintiff's claims.
issued a decision on May 17, 2018, finding Plaintiff not
disabled under the Social Security Act (“the
Act”). [R. 13-30.] At Step 1,  the ALJ found that Plaintiff
met the insured status requirements of the Act through
December 31, 2019, and had not engaged in substantial gainful
activity since March 17, 2016, the alleged onset date. [R.
16, Findings 1 & 2.] At Step 2, the ALJ found that
Plaintiff had the following severe impairments: degenerative
disc disease of the lumbar and cervical spine including mild
degenerative changes and mild/minimal protrusions, bilateral
shoulder degenerative joint disease (“DJD”) with
a history of two rotator cuff tears status post repair, a
history of carpal and cubital tunnel syndrome status post
release surgeries, obesity, depression, and anxiety. [R. 16,
Finding 3.] At Step 3, the ALJ found that Plaintiff did not
have an impairment or combination of impairments that meets
or medically equals one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. [R. 17, Finding 4.]
addressing Step 4, Plaintiff's ability to perform her
past relevant work, the ALJ assessed Plaintiff's residual
functional capacity (“RFC”) and found as follows:
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 the claimant must be
allowed to alternate between sitting and standing every 30
minutes for five minutes at the work station while completing
the task at hand. However, the claimant must never operate
foot controls with the left leg. Due postural limitations,
the claimant may occasionally balance, stoop, crouch, kneel,
and climb ramps and stairs. However, the claimant must never
crawl or climb ladders, ropes, or scaffolds. Although the
claimant can frequently reach, handle, finger, and feel, the
claimant must never reach overhead. Due to environmental
limitations, the claimant may only occasionally be exposed to
extreme cold, extreme heat, and vibration. She must also
avoid concentrated exposure to environmental irritants such
as odors, dust, gases, and fumes. Similarly, she must never
be exposed to poorly ventilated areas, dangerous chemicals,
unprotected heights, or open, moving, mechanical parts and
hazardous machinery. However, the claimant can concentrate
sufficiently in two-hour increments to perform simple routine
tasks, but not at a production rate pace. She is able to work
in a setting with fixed and predictable tasks.
[R. 19, Finding 5.] Based on this RFC, the ALJ determined at
Step 4 that Plaintiff was unable to perform her past relevant
work as a house cleaner and fast food worker. [R. 27, Finding
6.] However, based on Plaintiff's age, education, work
experience, RFC, and the testimony of a vocational expert
(“VE”), the ALJ determined that there were jobs
that existed in significant numbers in the national economy
that Plaintiff could perform. [R. 28, Finding 10.]
Accordingly, the ALJ concluded that Plaintiff had not been
under a disability, as defined in the Act, from March 17,
2016, through the date of the decision. [R. 29, Finding 11.]
requested Appeals Council review of the ALJ's decision,
but the Appeals Council declined review. [R. 1-6.] Plaintiff
filed an action for judicial review on August 17, 2018. [Doc.
contends that the ALJ committed error, requiring the decision
to be remanded for an award of benefits or, in the
alternative, for additional administrative proceedings. [Doc.
18.] Plaintiff argues that the ALJ failed to resolve a clear
conflict between the Dictionary of Occupational Titles
(“DOT”) and the VE's testimony. [Id.
at 16-17.] Specifically, Plaintiff argues that there is
“an apparent conflict between an RFC that limits
Plaintiff to simple, routine work, and a finding that
Plaintiff can perform work that has a GED reasoning code 2 or
3, which require her to understand detailed
instructions.” [Id.] Plaintiff also argues
that the ALJ failed to explain her findings with respect to
Plaintiff's capacity to sit, stand, and walk in light of
evidence supporting severe limitations due to her back pain
and joint inflammation. [Id. at 17-21.] Likewise,
Plaintiff contends the ALJ failed to properly explain her
consideration of Plaintiff's limitations in reaching,
handling, and fingering in light of her shoulder DJD, rotator
cuff surgeries, and carpal tunnel surgeries. [Id. at
22-24.] Lastly, Plaintiff argues the ALJ failed to adequately
evaluate her subjective symptomology (or pain complaints) in
light SSR 16-3p, which requires the ALJ to consider
Plaintiff's “statements about the intensity,
persistence, and limiting effects of  her symptoms”
and determine whether her statements “are consistent
with the medical signs and laboratory findings of
record.” [Id. at 24-26.]
Commissioner contends the ALJ's decision is supported by
substantial evidence and should be affirmed. [Doc. 20.] The
Commissioner argues that there is no conflict between the
VE's testimony and the DOT and that Plaintiff failed to
raise the issue with the VE and, thus, has waived this
argument. [Id. at 12-17.] The Commissioner also
contends that substantial evidence supports the ALJ's RFC
assessment where she conducted a function-by-function
analysis and explained how the evidence resulted in
functional limitations. [Id. at 17-18.] Finally, the
Commissioner argues that the ALJ's reasoning for her
evaluation of Plaintiff's subjective complaints of pain
is well explained and supported by substantial evidence.
[Id. at 18-22.]
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 (1991)).
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 U.S.C.
§ 423(a). “Disability” is defined 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 12 consecutive months.
Id. § 423(d)(1)(A).
The Five ...