Kemp v. Astrue, Civil Action No. 8:09-3318-JDA

• Decision Date: 22 September 2011
• Docket Number: Civil Action No. 8:09-3318-JDA
• Court: U.S. District Court — District of South Carolina
• Parties: Anna Lee Kemp, Plaintiff, v. Michael J. Astrue, Commissioner of Social Security, Defendant.

Anna Lee Kemp, Plaintiff,

v.Michael J. Astrue, Commissioner of Social Security, Defendant.

Civil Action No. 8:09-3318-JDA

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

September 22, 2011

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; and the Honorable Terry L. Wooten's March 16, 2010 Order of reference. 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 claims for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded pursuant to 42 U.S.C. § 405(g) for an award of benefits.

PROCEDURAL HISTORY

Plaintiff filed an application for DIB in February 2005, alleging disability beginning December 24, 1998.¹ [R. 82-90.] Her application was denied initially [R. 27, 58-62] andon reconsideration [R. 26]. In January 2007, Administrative Law Judge ("ALJ") Richard Vogel held an administrative hearing on Plaintiff's claim. [R. 345-75.] On July 26, 2007, the ALJ issued his decision, finding Plaintiff not disabled. [R. 10-25; see also R. 390-405 (duplicate).] After the Appeals Council denied Plaintiff's request for review [R. 5-8], Plaintiff sought judicial review in federal district court. [See R. 443-45 (civil docket in case filed on January 30, 2008).]

On March 5, 2009, the Honorable Henry M. Herlong, Jr., entered an order reversing the ALJ's decision and remanding the case for further proceedings. [R. 406-21.] Judge Herlong ordered that, on remand, the ALJ should:

• discuss the combined effects of Plaintiff's severe and non-severe impairments and whether such combined effects met or medically equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 [R. 411-12];

• consider all of Plaintiff's impairments in combination to determine her residual functional capacity [R. 412];

• specifically discuss statements from Plaintiff and her husband regarding Plaintiff's memory, concentration, vertigo, and vision and explain and reconsider all of the objective evidence that discredits those statements and symptoms when assessing Plaintiff's residual functional capacity during the relevant time period [R. 418]; and

• reassess the impairments resulting from Plaintiff's closed head injury and, if needed, include all of Plaintiff's credible limitations in the hypothetical questions posed to the vocational expert [R. 420].

On remand, the Appeals Council instructed the ALJ to conduct further proceedings consistent with Judge Herlong's order. [R. 535.] After a hearing in September 2009 [R. 549-62], the ALJ again denied Plaintiff's claim, issuing his decision on October 20, 2009 [R. 376-89]. The ALJ found Plaintiff had severe impairments—migraine headaches, depression, and a history of a closed head injury—and non-severe impairments—eyeproblems, a seizure disorder, and hypothyroidism.² [R. 382, Finding 4.] However, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. [Id., Finding 5.] Further, the ALJ found Plaintiff had the residual functional capacity to sit for six hours of an eight hour day; stand/walk for two hours of an eight hour day; frequently lift/carry light items; occasionally lift ten pounds; never climb or crawl; occasionally crouch and stoop; and never be exposed to hazards. [R. 383, Finding 6.] The ALJ also found Plaintiff would be restricted to low-stress work, defined as only occasional decision-making and changes in the work setting, with no exposure to the general public and only occasional interaction with co-workers and supervisors. [Id.] The ALJ determined Plaintiff was unable to perform her past relevant work [R. 387, Finding 7], but there were jobs that existed in significant numbers in the national economy that Plaintiff could perform [id., Finding 11].

Plaintiff filed this action for judicial review on December 23, 2009.³ [Doc. 1.] Upon motion by the Commissioner, the action was remanded pursuant to sentence six of 42 U.S.C. § 405(g) on May 7, 2010.⁴ [Doc. 13.] The case was reopened on September 30, 2010 [see Doc. 14] and is now ripe for review.

THE PARTIES' POSITIONS

Plaintiff alleges the ALJ disregarded the remand order by failing to properly assess the combined effect of Plaintiff's impairments and to conduct a proper credibility analysis. [Doc. 23 at 1.] Specifically, Plaintiff alleges the ALJ failed to explain why Plaintiff's impairments in combination did not meet or medically equal a listed impairment or have the combined effect of disability. [Id. at 13.] Plaintiff also argues she is entitled to rely exclusively on subjective evidence to prove the intensity, persistence and severity of her pain symptoms, relying on Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006); Plaintiff contends the ALJ relied on isolated references in the record to determine Plaintiff's complaints were not legitimate. [Id. at 14.] Further, Plaintiff alleges the Commissioner failed to meet its burden at Step 5 by arbitrarily and without proper reconciliation of contrary evidence deciding not to include Plaintiff's actual limitations in the ALJ's final determination of disability. [Id. at 15.]

The Commissioner argues Plaintiff did not meet her burden of showing she had a combination of impairments that met or medically equaled a listing. [Doc. 25 at 12.] The Commissioner also argues the ALJ identified valid reasons for discounting the credibility of Plaintiff's subjective statements. [Id. at 19.] Finally, the Commissioner argues the limitations presented to the vocational expert were only those limitations that were supported by substantial evidence and that the ALJ was not required to accept a limitation that was not supported by the evidence. [Id. at 21.]

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) (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)); 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 theevidence, 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. Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).

The reviewing court will reverse a 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).

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 plaintiff's residualfunctional 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 plaintiff disabled). Where the court cannot discern the basis for the Commissioner's...