George v. Saul

• Decision Date: 27 December 2019
• Docket Number: Civil Action No. 8:18-cv-02972-MGL-JDA
• Court: U.S. District Court — District of South Carolina
• Parties: Vanessa Faye George, Plaintiff, v. Andrew Saul, Commissioner Social Security, Defendant.

Vanessa Faye George, Plaintiff, v. Andrew Saul,¹ Commissioner Social Security, Defendant.

Civil Action No. 8:18-cv-02972-MGL-JDA

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

December 27, 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 claims 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).

PROCEDURAL HISTORY

In October 2014, Plaintiff filed applications for DIB and SSI, alleging an onset of disability date of September 23, 2009.⁴ [R. 210-26.] The claims were denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 67-145, 150-59.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on July 17, 2017, ALJ Peggy McFadden-Elmore conducted a de novo video hearing on Plaintiff's claims. [R. 46-66.]

The ALJ issued a decision on November 1, 2017, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 7-30.] At Step 1,⁵ the ALJ found Plaintiff met the insured status requirements of the Act through December 30, 2016, and had not engaged in substantial gainful activity since December 13, 2015, the amended alleged onset date. [R. 13, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: carpal tunnel syndrome; degenerative changes of the lumbosacral spine; hypothyroidism; hyperlipidemia; obesity; and history of fibromyalgia. [R. 13, Finding 3.] The ALJ also found Plaintiff had non-severe impairments of high blood pressure; anemia; insomnia; history of kidney stones; calculus of gallbladder with cholecystitis without biliary obstruction; S/P resection of ovarian cancer; and anxiety disorder. [R. 13.] At Step 3, the ALJ determined that Plaintiff did not have an impairment or combination of impairments thatmet or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 14, Finding 4.]

Before addressing Step 4, Plaintiff's ability to perform his 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 residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with some non-exertional limitations. The claimant is capable of lifting and/or carrying 20 pounds occasionally and 10 pounds frequently. She is capable of standing and/or walking at least 6 hours in an 8-hour workday and sitting about 6 hours in an 8-hour workday. She can occasionally climb ladders, ropes, scaffolds, ramps and stairs, balance, stoop, kneel, crouch and crawl. She can frequently perform handling bilaterally. She must avoid concentrated exposure to workplace hazards.

[R. 16, Finding 5.] Based on this RFC finding, the ALJ determined at Step 4 that Plaintiff was unable to perform her past relevant as a cook. [R. 23, Finding 6]. However, considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert ("VE"), the ALJ found that there were jobs that existed in significant numbers in the national economy that the Plaintiff could perform. [R. 24, Finding 10.] Thus, the ALJ found that Plaintiff had not been under a disability as defined in the Act from December 13, 2015, through the date of the decision. [R. 25, 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 November 2, 2018. [Doc. 1.]

THE PARTIES' POSITIONS

Plaintiff contends the ALJ's decision should be reversed and remanded for an award of benefits or for further administrative proceedings. [Doc. 15.] Specifically, Plaintiffcontends the ALJ failed to properly consider Plaintiff's fibromyalgia under SSR 12-2p [id. at 12-17]; failed to explain how the RFC accounts for Plaintiff's carpal tunnel syndrome, reduced range of motion of the bilateral shoulders, and peripheral neuropathy [id. at 18-21]; failed to properly assess medical source opinion evidence [id. at 21-27]; and failed to consider her subjective symptomology in accordance with SSR 16-3p [id. at 27-29].

The Commissioner, on the other hand, contends the ALJ's decision should be affirmed because the record contains substantial evidence supporting the decision. [Doc. 17.] The Commissioner argues the ALJ fully accounted for Plaintiff's credible limitations resulting from fibromyalgia consistent with SSR 12-2p [id. at 13-18]; properly considered the limitations associated with Plaintiff's carpal tunnel, shoulder osteoarthritis, and peripheral neuropathy [id. at 18-22]; properly analyzed the opinion of Plaintiff's rheumatologist [id. at 22-25]; and properly assessed Plaintiff's subjective statements [id. at 25-28].

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 Consol. 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 evidenceto 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 evidenceto 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...