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) 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 affirmed.
October 2014, Plaintiff filed an application for DIB,
alleging an onset of disability date of February 7, 2013. [R.
169-71.] The claim was denied initially and on
reconsideration by the Social Security Administration
(“the Administration”). [R. 105-08, 111-14.]
Plaintiff requested a hearing before an administrative law
judge (“ALJ”), and, on September 7, 2017, ALJ
James M. Martin conducted a hearing on Plaintiff's claim.
issued a decision on November 20, 2017, finding Plaintiff had
not been under a disability within the meaning of the Social
Security Act (“the Act”), from February 7, 2013,
through the date of the decision. [R. 7-29.] At Step 1,
ALJ found Plaintiff met the insured status requirements of
the Act through March 31, 2018, and had not engaged in
substantial gainful activity since February 7, 2013, the
alleged onset date. [R. 12, Findings 1 & 2.] At Step 2,
the ALJ found Plaintiff had severe impairments of
degenerative disc disease and degenerative joint disease. [R.
12, Finding 3.] At Step 3, the ALJ found that Plaintiff did
not have an impairment or combination of impairments that met
or medically equaled the severity of one of the impairments
listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 14,
addressing Step 4, Plaintiff's ability to perform her
past relevant work, the ALJ found Plaintiff retained the
following residual functional capacity (“RFC”):
After careful consideration of the entire record, I find that
the claimant has the RFC to perform sedentary work as defined
in 20 CFR 404.1567(a) except that she can frequently operate
hand controls with the right and left hands. She can
frequently reach overhead to the left and right. She can
frequently handle items with the right hand. She can
occasionally climb ladders/ropes/scaffolds and occasionally
[R. 15, Finding 5.] Based on this RFC finding, the ALJ
determined at Step 4 that Plaintiff was unable to perform her
past relevant work as a retail manager. [R. 21, 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. 22, Finding 10.]
Accordingly, the ALJ found Plaintiff had not been under a
disability, as defined in the Act, from February 7, 2013,
through the date of the ALJ's decision. [R. 23, Finding
requested Appeals Council review of the ALJ's decision,
but the Council declined. [R. 1-6.] Plaintiff filed the
instant action for judicial review on July 31, 2018. [Doc.
contends the ALJ's decision is not supported by
substantial evidence and “should be reversed outright
and the case remanded to the Commissioner for certification
of benefits beginning February 7, 2013. In the alternative,
the case should be remanded to the Commissioner for a new
Administrative Law Judge hearing and decision.” [Doc.
26 at 1.] Specifically, Plaintiff contends the ALJ did not
follow the “slight abnormality” standard by
failing to find that Plaintiff's combination of
depression/anxiety, COPD, and bronchitis were severe
impairments. [Id. at 16-19.] Plaintiff also argues
that the ALJ's RFC findings are not supported by
substantial evidence because they fail to account for time
off task and/or work absences [id. at 20-22] and
that the ALJ failed to limit Plaintiff to unskilled work as a
result of her pain [id. at 22-24].
Commissioner, on the other hand, contends that the ALJ
applied the correct legal standards and that substantial
evidence supports the ALJ's decision. [Doc. 44.] The
Commissioner argues that substantial evidence supports the
ALJ's findings that Plaintiff's depression and
anxiety, COPD, and bronchitis were non-severe impairments
that did not significantly limit her ability to perform basic
work activities. [Id. at 10-13.] The Commissioner
also contends that substantial evidence supports the
ALJ's RFC determination for a range of sedentary work at
all skill levels. [Id. at 13-20.]
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 Step Evaluation
facilitate uniform and efficient processing of disability
claims, federal regulations have reduced the statutory
definition of disability to a series of five sequential
questions. See, e.g., Heckler v. Campbell,
461 U.S. 458, 461 n.2 (1983) (noting a “need for
efficiency” in considering disability claims). The ALJ
must consider whether (1) the claimant is engaged in
substantial gainful activity; (2) the claimant has a severe
impairment; (3) the impairment meets or equals an impairment
included in the Administration's Official Listings of
Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4)
the impairment prevents the claimant from performing past
relevant work; and (5) the impairment prevents the claimant
from having substantial gainful employment. 20 C.F.R. §
404.1520. Through the fourth step, the burden of production
and proof is on the claimant. Grant v. Schweiker,
699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove
disability on or before the last day of her insured status to
receive disability benefits. Everett v. Sec'y of
Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir.
1969). If the inquiry reaches step five, the burden shifts to
the Commissioner to produce evidence that other jobs exist in
the national economy that the claimant can perform,
considering the claimant's age, education, and work
experience. Grant, 699 F.2d at 191. If at any step
of the evaluation the ALJ can find an individual is disabled
or not disabled, further inquiry is unnecessary. 20 C.F.R.
§ 404.1520(a); Hall v. Harris, 658 F.2d 260,
264 (4th Cir. 1981).
Substantial Gainful Activity
gainful activity” must be both substantial-involves
doing significant physical or mental activities, 20 C.F.R.
§ 404.1572(a)-and gainful-done for pay or profit,
whether or not a profit is realized, id. §
404.1572(b). If an individual has earnings from employment or
self-employment above a specific level set out in the
regulations, he is generally presumed to be able to engage in
substantial gainful activity. Id. §§