Herron v. Colvin

• Decision Date: 05 August 2016
• Docket Number: Civil Action No. 8:15-cv-01910-JDA
• Court: U.S. District Court — District of South Carolina
• Parties: Michael Wade Herron, Plaintiff, v. Carolyn W. Colvin, Commissioner of Social Security, Defendant.

Michael Wade Herron, Plaintiff, v. Carolyn W. Colvin, Commissioner of Social Security, Defendant.

Civil Action No. 8:15-cv-01910-JDA

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

August 5, 2016

ORDER

This matter is before the Court for a final Order pursuant to Local Civil Rules 73.02(B)(1) and 83.VII.02, D.S.C.; 28 U.S.C. § 636(c); the parties' consent to disposition by a magistrate judge [Doc. 6]; and the Honorable J. Michelle Childs's January 15, 2016 Order of reference [Doc. 23]. 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 supplemental security income ("SSI").¹ For the reasons set forth below, the decision of the Commissioner is reversed and remanded for administrative action consistent with this Order, pursuant to sentence four of 42 U.S.C. § 405(g).

PROCEDURAL HISTORY

In March 2012, Plaintiff filed an application for SSI, alleging disability beginning December 1, 2008.² [R. 158-63.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 104-08, 114-16.] Plaintiff requested a hearing before an administrative law judge ("ALJ") and on October 24, 2013, ALJ Frances W. Williams conducted a hearing on Plaintiff's claims. [R. 25-76.]

The ALJ issued a decision on December 12, 2013, finding Plaintiff not disabled. [R. 9- 24.] At Step 1,³ the ALJ found Plaintiff had not engaged in substantial gainful activity since March 22, 2012, the application date. [R. 14, Finding 1.] At Step 2, the ALJ found Plaintiff had the following severe impairments: depression, anxiety, personality disorder, and mild contractures of the two fingers of the left non-dominant hand. [R. 14, Finding 2.] The ALJ also found Plaintiff had a history of a right ankle fracture in 2007. [R. 14.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 15, Finding 3.] The ALJ specifically considered Listings 1.02, 12.04, 12.06, and 12.08. [R. 15-16.]

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 performmedium work as defined in 20 CFR 416.967(c). Specifically, the claimant is able to lift and carry up to 50 pounds occasionally and 25 pounds frequently. The claimant can perform frequent, not constant, fingering with the left non-dominant hand. The claimant is limited to unskilled work with no direct interaction with the public and only occasional team type interaction with co-workers.

[R. 16, Finding 4.] At Step 4, the ALJ noted Plaintiff was unable to perform his past relevant work as a carpenter [R. 20, Finding 5]; but based on his age, education, RFC, and the testimony of a vocational expert ("VE"), there were jobs that existed in significant numbers in the national economy that Plaintiff could perform [R. 20, Finding 9]. On this basis, the ALJ found Plaintiff had not been under a disability as defined by the Act since March 22, 2012, the date the application was filed. [R. 21, Finding 10.]

Plaintiff requested Appeals Council review of the ALJ's decision but the Council declined review. [R. 1-6.] Plaintiff filed this action for judicial review on May 5, 2015. [Doc. 1.]

THE PARTIES' POSITIONS

Plaintiff contends the ALJ's decision is not supported by substantial evidence and that remand is necessary for the following reasons:

1. The ALJ failed to properly evaluate the testimony of Plaintiff's mother [Doc. 16 at 8-11];

2. The ALJ erred in rejecting the opinion of Plaintiff's treating psychiatrist regarding Plaintiff's ability to work as set forth in his GAF scores [id. at 11-15];

3. The jobs identified by the VE in response to the ALJ's hypothetical are precluded by nonexertional limitations included in the hypothetical [id. at 15-16]; and

4. The ALJ erred in finding Plaintiff's ankle fracture was "not severe" [id. at 16-18].

The Commissioner, on the other hand, contends the ALJ's decision is supported by substantial evidence and that:

1. Substantial evidence supports the ALJ's credibility determination including the ALJ's consideration of lay testimony and the side effects of Plaintiff's medications [Doc. 17 at 13- 19];

2. Substantial evidence supports the ALJ's evaluation of the treating physician's GAF scores [id. at 19-23];

3. Substantial evidence supports the hypothetical proffered to the VE [id. at 23-27]; and

4. Substantial evidence supports the ALJ's determination at Step Two where Plaintiff failed to prove that his right ankle limited his basic work activities [id. at 27-30].

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 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. Commissioner, 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 andwhen 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); Brehem v. Harris, 621 F.2d 688, 690 (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. Commissioner, 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 claimantmay 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 (...