Usery v. Astrue

• Decision Date: 09 September 2011
• Docket Number: Civil Action No. 8:10-CV-775-JDA
• Parties: Dale W. Usery, Plaintiff, v. Michael J. Astrue, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of South Carolina

Dale W. Usery, Plaintiff,

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

Civil Action No. 8:10-CV-775-JDA

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

Dated: September 9, 2011

ORDER

This matter is before the Court for a final Order pursuant to D.S.C. Local Civil Rules 73.02(B)(1) and 83.VII.02, 28 U.S.C. § 636(c); the parties' consent to disposition by a magistrate judge; and the Honorable R. Bryan Harwell's November 18, 2010 Order of reference. 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"). 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).¹

PROCEDURAL HISTORY

Plaintiff protectively filed claims for DIB and SSI on March 22, 2005, alleging a disability onset date of August 9, 2003.² [R. 24-25, 93.] These claims were denied initially on July 19, 2005 [R. 25, 73-82] and upon reconsideration by the Social Security Administration ("the Administration") on February 9, 2006 [R. 24, 56-61]. Plaintiff requested a hearing before an administrative law judge ("ALJ") [R. 51-54], and on April 30, 2007, a hearing was held before ALJ Richard L. Vogel [R. 346-84].

By decision dated July 21, 2007, the ALJ determined Plaintiff was not disabled within the meaning of the Social Security Act ("the Act"). [R. 12-23.] Following his review of the evidence, the ALJ found Plaintiff had severe impairments, including status post right lower extremity fractures (kneecap and lower leg); arthritis of the spine; gout; and depression [R. 15, Finding 3], but did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 [R. 15, Finding 4]. The ALJ also found Plaintiff has the residual functional capacity to perform sedentary work activity utilizing a sit/stand option at will, with the following additional limitations: no climbing and kneeling; occasional crouching and stooping; no more than frequent fingering and handling; flexibility to use a cane while upright; and flexibility to prop leg while seated at a 45 degree angle. [R. 16, Finding 5.] Due to his depression, the ALJ found Plaintiff was further limited to a job in alow stress setting with only occasional decision-making and changes in the work setting. [Id.] With these restrictions, the ALJ determined Plaintiff was unable to perform past relevant work [R. 22, Finding 6] but jobs existed in significant numbers in the national economy Plaintiff could perform [R. 22, Finding 10].

On January 25, 2010, the ALJ's findings became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review of the hearing decision. [R. 3-6; 20 C.F.R. §§ 404.981, 416.1481.] Plaintiff filed this action for judicial review on March 26, 2010. [Doc. 1.]

THE PARTIES' POSITIONS

Plaintiff contends (1) the ALJ erred in determining Plaintiff's residual functional capacity by failing to give proper weight to the opinion of consultative examining physician Dr. Harriett Steinert and/or by failing to explain why the ALJ did not adopt Dr. Steinert's opinion; (2) the ALJ erred by relying on the testimony of the vocational expert, whose opinion does not support the ALJ's findings; (3) the Appeals Council erred by failing to review the ALJ's decision in light of new evidence and/or failed to explain why the new evidence did not justify review; and (4) the decision is not supported by substantial evidence. [Doc 15.]

The Commissioner contends the ALJ's decision is supported by substantial evidence and must be affirmed. [Doc. 17.] Specifically, the Commissioner argues (1) objective medical evidence supports the ALJ's findings with respect to Plaintiff's physical limitations, and Dr. Steinert's opinion was "essentially consistent" with the ALJ's residualfunctional capacity assessment³ ; (2) the ALJ's hypothetical question to the vocational expert, which tracked the ALJ's residual functional capacity findings, is free of reversible legal error because the ALJ was not required to include limitations in his hypothetical questions to the vocational expert that the ALJ found were not supported by the record; and (3) the Appeals Council was not required to consider the "new evidence" because Dr. Freeman's opinion was not "material" as there was not a reasonable possibility that it would have changed the outcome, and the Appeals Council decision is not subject to judicial review. [Doc. 17.]

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. Persies, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Ceiebrezze, 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 isevidence 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 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. 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 42U.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 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 plaintiff disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four may be appropriate to allow the Commissioner to explain the basis for the decision. See 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 (1991)).

In contrast, sentence six provides:

The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a

...