Bruster v. Saul, Civil Action No. 8:18-cv-02866-CMC-JDA

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtJacquelyn D. Austin United States Magistrate Judge
PartiesRandall Lamonte Bruster, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
Decision Date30 August 2019
Docket NumberCivil Action No. 8:18-cv-02866-CMC-JDA

Randall Lamonte Bruster, Plaintiff,
v.
Andrew Saul1,
Commissioner of Social Security, Defendant.

Civil Action No. 8:18-cv-02866-CMC-JDA

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION

August 30, 2019


REPORT AND RECOMMENDATION OF 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

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be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).

PROCEDURAL HISTORY

In June 2014, Plaintiff filed an application DIB and, in July 2014, he filed an application for SSI, both alleging an onset of disability date of November 4, 2010. [R. 335-338, 339-345.] The claims were denied initially and upon reconsideration. [R. 160-177, 193-221, 241-248.] Thereafter, Plaintiff requested a hearing before Administrative Law Judge ("ALJ"), and, on January 31, 2017, ALJ Nicholas Walter conducted a de novo review hearing on Plaintiff's claims. [R. 46-98.] At the hearing before the ALJ, Plaintiff amended his alleged onset date to December 30, 2013. [R. 357.] On July 6, 2017, the ALJ held a supplemental hearing to obtain testimony from a medical expert and board certified rheumatoligist, Dr. Duby, on the issue of ankylosing spondylitis. [R. 99-123.]

The ALJ issued a decision on September 11, 2017, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 16-37.] At Step 1,4 the ALJ found that Plaintiff met the insured status requirements of the Act through December 31, 2013, and had not engaged in substantial gainful activity since December 30, 2013, the amended alleged onset date. [R. 18, Findings 1 & 2.] At Step 2, the ALJ found that Plaintiff had the following severe impairments: spinal disorder, inflammatory arthritis, osteoarthritis, gout, and affective disorder. [R. 19, Finding 3.] The ALJ also found that Plaintiff had a medically determinable impairment of fibromyalgia on or prior to December 30, 2013, but he found

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no evidence that the impairment met the 1990 or 2010 American College of Rheumatology ("ACR") classification criteria. [R. 19-20.] 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. 20, Finding 4.]

Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found as follows:

After careful consideration of the entire record, I find 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 can occasionally climb ramps and stairs; the claimant can never climb ladders, ropes and scaffold; he can occasionally stoop, kneel, crouch, and crawl; he can never be exposed to no hazards; he can occasionally reach overhead. The claimant can perform simple routine tasks; time off task can be accommodated by normal breaks; in addition, he is able to tolerate few changes in the routine work setting.
R. 24, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform his past relevant work as a cut off (cross over) saw operator, material handler, and auto detailer. [R. 35, 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. 35, Finding 10.] Accordingly, the ALJ concluded that Plaintiff had not been under a disability, as defined in the Act, from November 4, 2010, through the date of the decision. [R. 36, Finding 11.

Plaintiff requested Appeals Council review of the ALJ's decision, but the Appeals Council declined review. [R. 1-6.] Plaintiff filed this action for judicial review on October 23, 2018. [Doc. 1.]

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THE PARTIES' POSITIONS

Plaintiff contends that the ALJ committed error, requiring the decision to be remanded for additional administrative proceedings. [Doc. 14.] Specifically, Plaintiff argues a clear conflict exists between the Dictionary of Occupational Titles ("DOT") and the VE's testimony because "[t]he 4th Circuit has ruled that if a claimant is limited to simple, routine, repetitive tasks, then the DOT says he cannot perform a GED 2 job." [Id. at 34.] Plaintiff contends that the ALJ's failure to elicit an explanation regarding this particular conflict warrants remand for further evaluation. [Id. at 35-36.]

The Commissioner contends that the decision is supported by substantial evidence and should be affirmed. [Doc. 15.] The Commissioner argues that the "conflict" alleged by Plaintiff was not "apparent" as required in SSR 00-4p, and that, "[u]nlike the claimants in Henderson and Thomas, Plaintiff is unable to identify any textual conflict between the DOT and the vocational expert's testimony in his case because there is none." [Id. at 7-9.]

STANDARD OF REVIEW

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

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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.

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§ 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...

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