United States District Court, D. South Carolina
BAYLEY D. VINSON, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE
filed the complaint in this action pursuant to 42 U.S.C.
§ 405(g), seeking judicial review of the final decision
of the Commissioner wherein she was denied disability
benefits. This case was referred to the undersigned for a
report and recommendation pursuant to Local Civil Rule
applied for Disability Insurance Benefits (DIB) on May 14,
2014 (protective filing date), alleging disability beginning
November 6, 2011,  due to broken CI and C2 vertebra in the
spine, a broken left shoulder, a broken right shoulder, a
broken left forearm, broken pelvic bone in two places,
depression and anxiety (R.pp. 232-242). Plaintiffs claim was
denied both initially and upon reconsideration. Plaintiff
then requested a hearing before an Administrative Law Judge
(ALJ), which was held on August 1, 2017. (R.pp.
36-77). The ALJ thereafter denied Plaintiff's
claim in a decision issued September 20, 2017. (R.pp. 15-30).
The Appeals Council denied Plaintiff's request for a
review of the ALJ's decision, thereby making the
determination of the ALJ the final decision of the
Commissioner. (R.pp. 1-6).
then filed this action in United States District Court.
Plaintiff asserts that there is not substantial evidence to
support the ALJ's decision, and that the decision should
be reversed and remanded to the Commissioner for an award of
benefits, or in the alternative for further consideration of
her claim. The Commissioner contends that the decision to
deny benefits is supported by substantial evidence, and that
Plaintiff was properly found not to be disabled.
42 U.S.C. § 405(g), the Court's scope of review is
limited to (1) whether the Commissioner's decision is
supported by substantial evidence, and (2) whether the
ultimate conclusions reached by the Commissioner are legally
correct under controlling law. Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990); Richardson v.
Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers
v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If
the record contains substantial evidence to support the
Commissioner's decision, it is the court's duty to
affirm the decision. Substantial evidence has been defined
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 refusal to
direct a verdict were the case before a jury, then there is
“substantial evidence.” [emphasis added].
Hays, 907 F.2d at 1456 (citing Laws v.
Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also
Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir.
2008)[Nothing that the substantial evidence standard is even
“less demanding than the preponderance of the evidence
Court lacks the authority to substitute its own judgment for
that of the Commissioner. Laws, 368 F.2d at 642. “[T]he
language of [405(g)] precludes a de novo judicial proceeding
and requires that the court uphold the [Commissioner's]
decision even should the court disagree with such decision as
long as it is supported by substantial evidence.”
Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir.
who was only twenty-four years old on her original alleged
disability onset date,  has a high school education and past
relevant work experience as a Certified Nurse Assistant
(CNA), a fast food worker, and a retail cashier. (R.pp. 28,
232, 237). In order to be considered “disabled”
within the meaning of the Social Security Act, Plaintiff must
show that she has an impairment or combination of impairments
which prevent her from engaging in all substantial gainful
activity for which she is qualified by her age, education,
experience, and functional capacity, and which has lasted or
could reasonably be expected to last for a continuous period
of not less than twelve (12) months. After a review of the
evidence and testimony in the case the ALJ determined that,
although Plaintiff does suffer from the “severe”
impairments of status- post motor vehicle accident
with bilateral shoulder, pelvic, and C1-2 fractures;
DeQuervain's tenosynovitis,  left greater than right;
obesity; major depressive disorder; mild neurocognitive
disorder due to traumatic brain injury; obsessive compulsive
disorders; and personality changes, thereby rendering her
unable to perform any of her past relevant work, she
nevertheless retained the residual functional capacity (RFC)
to perform a range of light work with certain specified
limitations, and was therefore not entitled to disability
benefits. (R.pp. 18, 20, 28-29).
asserts that in reaching this decision the ALJ erred by
improperly weighing the medical opinion evidence of Dr.
Randolph Waid (an examining psychologist), by improperly
relying on the opinions of the state agency medical
consultants with respect to Plaintiffs physical limitations,
by failing to properly consider and assess Plaintiffs
subjective complaints as to the extent of her pain and
limitations, and by failing to sustain his burden of
establishing that there is other work in the national economy
that Plaintiff can perform with her limitations. After
careful review and consideration of the record and arguments
presented, the undersigned is constrained to agree with the
Plaintiff that the ALJ failed to properly evaluate Dr.
Waid's opinion in conjunction with the other medical
evidence relating to Plaintiffs mental impairments in
fashioning Plaintiffs RFC, thereby requiring a remand of
Plaintiff s claim for further consideration.
defined as “the most [a claimant] can still do despite
[the claimant's] limitations.” 20 C.F.R. §
404.1545(a)(1). In SSR 96-8p, RFC is defined as a
function-by-function assessment of an individual's
physical and mental capacities to do sustained, work-related
physical and mental activities in a work setting on a regular
and continuing basis of eight hours per day, five days per
week, or the equivalent. SSR 96-8p, 1996 WL 374184. During
his examination of the Plaintiff in August 2012, Dr. Waid
noted that Plaintiff reported experiencing a decreased
capacity for attention/concentration and memory, and that
Plaintiff had stated that she “cannot do anything very
long”. On objective testing, Dr. Waid found that
Plaintiff demonstrated a good ability to sustain her
vigilance to “the demands of the task”, although
“[n]europsychological evaluation revealed variability
in [Plaintiff's] capacity to sustain
attention/concentration with slow mental processing
speed”. (R.pp. 748, 751, 753). When Dr. Waid saw
Plaintiff again in July 2017, his clinical presentation notes
indicate that Plaintiff continued to experience cognitive
impairments involving attention/concentration difficulties
and memory problems including an easy distractability, while
on testing her results were classified as poor and consistent
with attention problems. Dr. Waid concluded that
Plaintiff's mental and functional difficulties
compromised her capacities to sustain attention/concentration
and process information in her day to day pursuits. (R.pp.
786-787, 789, 794). Dr. Waid also completed a Mental
Impairments check sheet provided by Plaintiff's attorney
in which he found, inter alia, that Plaintiff had a marked
limitation in her ability to concentrate, persist, or
maintain pace. (R.p. 799).
fashioning Plaintiff's RFC, the ALJ gave little weight to
Dr. Waid's opinion, finding that his conclusions were
heavily based on Plaintiff's subjective reports, and
tended to ignore Plaintiff's almost across the board test
scoring in the average to low average range. (R.p. 28). The
undersigned agrees that many of Dr. Waid's own test
results reflect test scores in only the average to low
average range, calling into question Dr. Waid's finding
of “marked” limitations. (R.pp. 788-791). Even
so, substantial evidence in the case record does not support
the ALJ's finding that the Plaintiff would not have
difficulty with stamina and persistence in the work place due
to her complaints of low energy and attention and
concentration problems. (R.p. 28). In reaching that
conclusion, the ALJ specifically found that the “
record does not demonstrate that [Plaintiff] has complained
of low energy levels or problems with attention and
concentration to her primary care providers”.
Id. However, the ALJ himself (in his decision) cites
to Plaintiff's medical records wherein Plaintiff
complained of attention and concentration problems. Plaintiff
discussed her attention problems with P. A. Josephine Redman
(at Palmetto Primary Care Physicians) on May 29, 2013, she
discussed her attention and concentration problems with Dr.
Cashton Spivey on July 25, 2014, and complained to Dr. Waid
of difficulties sustaining attention and concentration in
July 2017, all as noted by the ALJ himself in his decision.
See (R.pp. 24-26, 514-515, 609-611, 784-794). The ALJ also
noted that Plaintiff testified at the hearing that she has
limitations in concentrating and completing tasks. (R.pp. 20,
22). As such, that finding was clear error. Similarly, the
ALJ states that “the record fails to show any mention
of distractability”. (R.p. 20). However, in addition to
Plaintiff's own testimony on this ...