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Gunter v. Saul

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

August 28, 2019

Carol Lynn Gunter, Plaintiff,
Andrew Saul[1], Commissioner of Social Security, Defendant.


          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) 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”).[3]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).


         In 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. [R. 35-100.]

         The ALJ issued a decision on May 17, 2018, finding Plaintiff not disabled under the Social Security Act (“the Act”). [R. 13-30.] At Step 1, [4] 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.]

         Before 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.]

         Plaintiff 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. 1.]


         Plaintiff 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.]

         The 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.]


         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).[5] 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).


         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 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).

         I. The Five ...

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