Lamon v. Colvin

• Decision Date: 28 January 2015
• Docket Number: Civil Action No. 8:13-2625-RMG-JDA
• Court: U.S. District Court — District of South Carolina
• Parties: Donald E. Lamon, Plaintiff, v. Carolyn W. Colvin, Commissioner of Social Security, Defendant.

Donald E. Lamon, Plaintiff, v. Carolyn W. Colvin, Commissioner of Social Security, Defendant.

Civil Action No. 8:13-2625-RMG-JDA

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

January 28, 2015

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

This matter is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, U.S.C. § 636(b)(1)(B).¹ 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").² 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

On August 14, 2009,³ Plaintiff filed applications for SSI and for DIB alleging an onset of disability date of June 1, 2007, in both applications. [R. 164-78.] He alleged disability based on disorders of the back (discogenic and degenerative), electrocution injury, lung operation and fever, and fractured arm as a child. [R. 66-67.] Plaintiff's claims were denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 71-72, 87-94.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and, on November 2, 2011, ALJ John Bauer conducted a de novo hearing on Plaintiff's claims. [R. 33-62.]

The ALJ issued a decision on December 21, 2011, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 18-32.] At Step 1,⁴ the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2012, and had not engaged in substantial gainful activity since June 1, 2007, the alleged onset date. [R. 20, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: back impairment and left lower extremity paresthesia status post electrocution injury. [R. 20, Finding 3.] The ALJ also determined Plaintiff had the following non-severe impairments: carpal tunnel syndrome bilaterally; chest pain, fracture of the left arm at age eight with closed reduction; tonsillectomy at age 9; left kidney surgery for re-attachment of the ureter at age 28; removal of residual catheter at age 29; and lung resection for ValleyFever at age 35. [R. 21.] Further, the ALJ found there was insufficient objective evidence to find that Plaintiff's alleged depression and anxiety were medically determinable impairments. [Id.] At Step 3, the ALJ determined Plaintiff did not have an impairment or combination of impairments that met or medically equaled the criteria of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 21-22, Finding 4.] The ALJ specifically considered Listings 1.04 (Disorder of the Spine) and 1.02( major dysfunction of a joint). [Id.] The ALJ noted there was no medical listing for an electrocution injury, and there is no evidence Plaintiff meets or equals any medical listing from this reported injury. [R. 22.]

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

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 lift twenty pounds occasionally and ten pounds frequently; the claimant can occasionally stoop, kneel, crouch, and crawl; the claimant can never climb ladders, ropes, or scaffolds; and the claimant can frequently balance.

[R. 22, Finding 5.] Based on this RFC, at Step 4, the ALJ determined Plaintiff was unable to perform his past work as a ranch hand and mill foreman. [R. 25, Finding 6.] Considering the Plaintiff's age, education, work experience, and RFC, however, the ALJ determined that there are jobs that exist in significant numbers in the national economy that the Plaintiff can perform. [R. 25-26, Finding 10.] Accordingly, the ALJ concluded Plaintiff has not been under a disability, as defined by the Act, at any time from June 1, 2007, through the date of the decision. [R. 26, Finding 11.] The ALJ, thus, declined to award either DIB or SSI benefits. [R. 26.]

Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined review. [R. 4-9.] Plaintiff filed this action for judicial review on September 25, 2013. [Doc. 1.]

THE PARTIES' POSITIONS

Plaintiff contends the ALJ's decision is not supported by substantial evidence and the ALJ erred by

1. Improperly weighing the opinion of Plaintiff's treating physician, Dr. Bryan L. Andresen ("Dr. Andresen"), by rejecting certain stated physical limitations and improperly giving more weight to the opinions of state agency physicians; and,

2. Failing to sufficiently explain his findings with respect to his decision to exclude certain physical limitations from the RFC (i.e., the need to change station and avoid prolonged standing or walking).

Plaintiff seeks to a reversal of the Commissioner's decision and a remand for an award of benefits or, in the alternative, additional administrative proceedings.

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

1. Properly considered Dr. Andresen's opinion; and,

2. Properly assessed Plaintiff's RFC.

Accordingly, the Commissioner submits the ALJ's final decision warrants affirmance.

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 tosupport 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. 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 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); 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. 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"...