Pringle v. Commissioner of the Social Security Administration

Filing 29

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the recommendation of the Magistrate Judge. [ECF #20]. The Commissioner's decision is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Signed by Honorable R Bryan Harwell on 5/2/2017. (gnan )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Patrick S. Pringle,

)
)
Plaintiff,
)
)
v.
)
)
Nancy A. Berryhill, Acting Commissioner )
of the Social Security Administration,
)
)
Defendant.
)
____________________________________)

Civil Action No.: 4:16-cv-02639-RBH

ORDER

Plaintiff Patrick S. Pringle, (“Plaintiff”) seeks judicial review, pursuant to 42 U.S.C. § 405(g),
of a final decision of the Commissioner of the Social Security Administration (the “Commissioner”)
denying Plaintiff’s claim for supplemental security income (“SSI”) under the Social Security Act (the
“Act”). The matter is before the Court for review of the Report and Recommendation of United States
Magistrate Judge Thomas E. Rogers, III, made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02(B)(2) for the District of South Carolina. The Magistrate Judge recommends the Court
affirm the Commissioner’s decision. [ECF #20].
Factual Findings and Procedural History
On September 19, 2012, Plaintiff filed an application for SSI alleging an inability to work since
February 1, 2008. [ECF #9, Ex. 1D]. At the hearing, Plaintiff amended his onset date to November 28,
2012, the date of his fiftieth birthday. [ECF #11, p. 8]. Plaintiff alleges disability due to depression, a
herniated disc, Crohn’s disease and high blood pressure. [ECF #9, Ex. 1A].
Plaintiff was incarcerated for a total of approximately twenty-five years for various crimes such
as burglary, disorderly conduct, and breaking and entering. [ECF #11, p. 4]. The record does not
contain a large volume of medical records. However, a review of the record reveals Plaintiff suffers

from a long history of intestinal disorders, including exacerbation of Crohn’s disease, the repair of a
prolapsed mucus fistula at 28 years old and two ostomy bags. [ECF #11, p. 5]. In 2009, Plaintiff
underwent bowel surgery. [ECF #11, p. 5]. In 2012, after Plaintiff was released from prison, he was
admitted to the hospital for abdominal pain. [ECF #11, p. 5]. He was again admitted to the hospital
in 2013 for rectal bleeding. [ECF #11, p. 5]. In January of 2014, Plaintiff was treated for a perirectal
abcess. [ECF #11, p. 5]. Several months later, he was diagnosed with possible cellulitis of the anal area,
and in the same year he was treated for acute liver failure arising from Tylenol overdoses. [ECF #11,
p. 5]. At the hearing, Plaintiff testified that he underwent a colostomy in 1990 and has worn a colostomy
bag for approximately 9 and ½ years. [ECF #9-2, pp. 40, 45]. He also reported suffering from an anal
fistula, which makes it difficult for him to sit for sustained periods. [ECF #11, p. 6]. Due to his need
to make frequent trips to the restroom, Plaintiff testified he was unable to keep his employment with
Outback Steakhouse. [ECF #11, p. 42].
With respect to Plaintiff’s back injuries, records indicate he has degenerative changes throughout
his pelvis in the lumbar spine, including a posterior disc protrusion at L4-5. [ECF #11, p. 5]. Plaintiff
testified at the hearing that due to his back pain, he cannot stand up for long periods of time. [ECF #9-2,
p. 44]. He testified that he could lift approximately ten to twenty pounds. [ECF #9-2, p. 54]. He
testified that he uses a cane. [ECF #9-2, p. 54]. His testimony also included the fact that he could not
walk for more than thirty minutes without a break, and he is limited to a couple of hours on his feet at
a time. [ECF #11, p. 6]. Plaintiff does not have records indicating he has been in psychiatric care for
any extended period of time, however, it appears he was diagnosed with depression and given a
prescription for Celexa. [ECF #11, p. 5].
Two state agency consultants evaluated Plaintiff and opined that he could stand and walk for
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six of the eight hours in the work day, and lift twenty pounds occasionally and ten pounds frequently,
which was consistent with a finding of the ability to perform light work. [ECF #11, p. 5]. At the
hearing, a vocational expert offered testimony regarding two hypothetical situations. In the first
hypothetical, he was asked to assume than an individual had no past relevant work, but could stand,
walk, and lift with limitations consistent with an ability to perform light work. [ECF #11, p. 6]. The
vocational expert determined that this would allow for occupations including unskilled assembly, hand
packers and packagers, and simple machine tenders and operators. [ECF #11, p. 6]. The vocational
expert was then given a second hypothetical in which he was to assume an individual could stand or
walk for only one hour of the workday. [ECF #11, p. 7]. The vocational expert determined that the
individual could perform the same occupations previously discussed even with this additional limitation
because those jobs involve sitting most of the time. [ECF #11, p. 7]. When questioned by Plaintiff’s
attorney regarding Plaintiff’s limitations, the vocational expert did testify that these occupations would
require the ability to maintain the work area for two hours at a time without leaving for the bathroom.
[ECF #11, p. 7]. He further opined that the occupations could not be performed with the use of a cane.
[ECF #11, p. 7].
The Social Security Administration denied his application initially and on reconsideration, so
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). The ALJ held a hearing on
February 3, 2015. The ALJ denied Plaintiff’s claim on March 26, 2015, finding that Plaintiff was not
under a disability as defined in the Social Security Act, as amended. [ECF #9-2, p.26]. The ALJ’s
findings were as follows:
(1) The claimant has not engaged in substantial gainful activity since
September 19, 2012, the application date. (20 C.F.R. 416.971 et seq.).

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(2) The claimant has the following severe impairments: Chrohn’s
Disease and spine disorder (20 C.F.R. 416.920(c)).
(3) The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. 416.920(d), 416.925 and 416.926).
(4) 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 C.F.R. 416.967(b) except he can lift up to twenty
pounds occasionally and ten pounds frequently. The claimant can
stand or walk approximately one hour per eight-hour workday and sit
approximately seven hours per eight-hour workday, with normal
breaks. The claimant can never climb ladders, ropes, scaffolds,
ramps, or stairs.
(5) The claimant has no past relevant work (20 C.F.R. 416.965).
(6) The claimant was born on November 28, 1962, and was 49 years
old, which is defined as a younger individual age 18-49, on the date
the application was filed. The claimant subsequently changed age
category to closely approaching advanced age (20 C.F.R.416.963).
(7) The claimant has at least a high school education and is
able to communicate in English (20 C.F.R.416.964).
(8) Transferability of job skills is not an issue because the claimant
does not have past relevant work (20 C.F.R. 416.968).
(9) Considering the claimant's age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform
(20 C.F.R. 416.969 and 416.969(a)).
(10) The claimant has not been under a disability, as defined in the
Social Security Act, since September 19, 2012, the date the
application was filed (20 C.F.R. 416.920(g)).
[ECF #9-2, pp. 19-26].
Plaintiff requested a review of the ALJ’s decision, which the Appeal Council denied on July 13,
2016, making the decision of the ALJ the final decision of the Commissioner. [ECF #10-2, p. 1-5]. On
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July 26, 2016, Plaintiff filed a complaint seeking judicial review of the Commissioner’s decision. [ECF
#1]. Both Plaintiff and Defendant filed briefs [ECF #11; ECF #16; ECF #17], and the Magistrate Judge
issued his Report and Recommendation on March 3, 2017, recommending that the Commissioner’s
decision be affirmed. [ECF #20, p. 13].

The Magistrate Judge recommends affirming the

Commissioner’s decision because the record contains substantial evidence to support the decision that
Plaintiff was not disabled within the meaning of the Social Security Act during the relevant time period.
[ECF #20, p. 13]. Plaintiff filed objections on March 15, 2017. [ECF #22]. Defendant replied to these
objections on March 27, 2017. [ECF #27].
Standard of Review
I.

Judicial Review of the Commissioner’s Findings
The federal judiciary has a limited role in the administrative scheme established by the Act,

which provides the Commissioner’s findings “shall be conclusive” if they are “supported by substantial
evidence.” 42 U.S.C. § 405(g). “Substantial evidence has been defined innumerable times as more than
a scintilla, but less than preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964).
Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
This statutorily mandated standard precludes a de novo review of the factual circumstances that
substitutes the Court’s findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157, 1157-58
(4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). The Court must uphold the
Commissioner’s factual findings “if they are supported by substantial evidence and were reached
through application of the correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012); see also Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972) (stating that even if the Court

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disagrees with the Commissioner’s decision, the Court must uphold the decision if substantial evidence
supports it). This standard of review does not require, however, mechanical acceptance of the
Commissioner’s findings. Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). The Court “must not
abdicate [its] responsibility to give careful scrutiny to the whole record to assure that there is a sound
foundation for the [Commissioner]’s findings, and that [her] conclusion is rational.” Vitek, 438 F.2d
at 1157-58.
II.

The Court’s Review of the Magistrate Judge’s Report and Recommendation
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s

recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the Report and Recommendation (“R & R”) to which specific
objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of
the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when
a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 200 (4th Cir. 1983).
Applicable Law

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Under the Act, Plaintiff’s eligibility for the sought-after benefits hinges on whether he is under
a “disability.” 42 U.S.C. § 423(a). The Act defines “disability” as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” Id. § 423(d)(1)(A). The claimant bears the ultimate burden to prove
disability. Preston v. Heckler, 769 F.2d 988, 991 n.* (4th Cir. 1985). The claimant may establish a
prima facie case of disability based solely upon medical evidence by demonstrating that his impairments
meet or equal the medical criteria set forth in Appendix 1 of Subpart P of Part 404 of Title 20 of the
Code of Federal Regulations. 20 C.F.R. §§ 404.1520(d) & 416.920(d).
If such a showing is not possible, a claimant may also establish a prima facie case of disability
by proving he could not perform his customary occupation as the result of physical or mental
impairments. See Taylor v. Weinberger, 512 F.2d 664, 666-68 (4th Cir. 1975). This approach is
premised on the claimant’s inability to resolve the question solely on medical considerations, and it is
therefore necessary to consider the medical evidence in conjunction with certain vocational factors. 20
C.F.R. §§ 404.1560(a) & § 416.960(a). These factors include the claimant’s (1) residual functional
capacity, (2) age, (3) education, (4) work experience, and (5) the existence of work “in significant
numbers in the national economy” that the individual can perform. Id. §§ 404.1560(a), 404.1563,
404.1564, 404.1565, 404.1566, 416.960(a), 416.963, 416.964, 416.965, & 416.966. If an assessment
of the claimant’s residual functional capacity leads to the conclusion that he can no longer perform his
previous work, it then becomes necessary to determine whether the claimant can perform some other
type of work, taking into account remaining vocational factors. Id. §§ 404.1560(c)(1) & 416.960(c)(1).
Appendix 2 of Subpart P governs the interrelation between these vocational factors. Thus, according

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to the sequence of evaluation suggested by 20 C.F.R. §§ 404.1520 & 416.920, it must be determined
(1) whether the claimant currently has gainful employment, (2) whether he suffers from a severe
physical or mental impairment, (3) whether that impairment meets or equals the criteria of Appendix
1, (4) whether, if those criteria are met, the impairment prevents him from returning to previous work,
and (5) whether the impairment prevents him from performing some other available work.
Analysis
Plaintiff’s objection to the recommendation of the Magistrate Judge is that it was error not to
explicitly consider the application of the sedentary rule, which would have resulted in a finding that
Plaintiff was disabled under the guidelines. This is the same argument Plaintiff previously advanced
in his briefs to this Court and were previously considered by the Magistrate Judge. Plaintiff expressly
notes, however, that he is not challenging the finding of the RFC. [ECF #22, p.4].
Plaintiff notes that the ALJ applied what is often termed as a “mixed RFC” to his conditions;
specifically that the RFC’s determination of the weight Plaintiff can lift is consistent with the definition
of “light work,” while Plaintiff’s ability to stand or walk is consistent with the definition of “sedentary
work.” Plaintiff argues that this decision does not comply with Social Security Ruling 83-12 because
the ALJ did not “assess the significance” of the degree of erosion of the occupational base. [ECF #11,
p. 13]. It is Plaintiff’s contention that the ALJ should have considered applying the sedentary rule, or
otherwise considered the fact that Plaintiff’s severe limitations in standing or walking for one hour
might have significantly eroded the light occupational base, such that Plaintiff should have been found
disabled. In reviewing the record, the Magistrate Judge considered the fact that the vocational expert
opined that Plaintiff would be able to perform certain occupations, even with the one hour
standing/walking limitation. The Magistrate Judge also found conclusive the fact that the vocational

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expert opined that there was no variation in his response to the two hypotheticals given because he had
already reduced the occupations Plaintiff would be able to perform–in other words those occupations
already take into consideration the need for additional time for sitting due to the limit on how long he
can stand/walk. [ECF #20, p. 12]. Therefore the Magistrate Judge found that the ALJ’s reliance on this
testimony and what jobs Plaintiff could perform in the national economy to conclude that Plaintiff was
not disabled was supported by the evidence within the record.
Social Security Ruling 83-12 states: “[t]he adjudicator will consider the extent of any erosion
of the occupational base and assess its significance.” SSR 83-12 further provides adjudicative guidance
to situations where the exertional level falls between two rules which direct opposite conclusions, i.e.
a finding of disabled at one level, but not disabled at the over level. The Ruling also states that, “if the
exertional capacity is significantly reduced in terms of the regulatory definition, it could indicate little
more than the occupational base for the lower rule and could justify a finding of ‘Disabled”’ (emphasis
added). Thus, in situations where an individual’s RFC, age, education and experience do not directly
coincide with the criteria under the rules, “the rules are used, in conjunction with the definitions and
discussions in the text of the regulations, as guidance for decision making.” SSR 83-10, 1983 WL
31251. Plaintiff is admittedly aware of the fact that the Fourth Circuit does not require reversal of a
decision whenever the ALJ does not set out specific findings concerning the erosion of an occupational
base when, as here, an ALJ receives the testimony of a vocational expert. However, Plaintiff urges this
Court to consider the rationale in Bisceglia v. Colvin, 173 F. Supp. 3d 326 (E.D. Va. 2016) to come
to the conclusion that the ALJ did not adequately address the significance of the degree of the erosion
of the occupational base, based mainly on Plaintiff’s inability to walk/stand beyond an hour.
This Court first considers the binding precedent in this Circuit. The Fourth Circuit has held that

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a Commissioner makes a proper finding that a claimant is not disabled if the vocational expert’s
testimony upon which it relied included testimony that jobs exist in the national economy based on a
hypothetical that accurately reflects the claimant’s work-related abilities. Morgan v. Barnhart, 142 Fed.
Appx. 716, 720-21 (4th Cir. 2005) (citing Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). Plaintiff
does not explicitly argue that the hypothetical was improper. Moreover, other cases in this Circuit have
not imposed the heightened standard suggested by Plaintiff. The Fourth Circuit has observed that the
rules does not prescribe a set formula for assessing the availability of jobs. Walls v. Barnhart, 296 F.3d
287, 291 (4th Cir. 2002). It is clear in this case that the ALJ relied upon the vocational expert’s
testimony that occupations existed in significant numbers in the national economy given the limitation
on standing/walking. The ALJ specifically cited to this testimony and the specific occupations and
numerosity of jobs available in determining the extent of erosion caused by Plaintiff’s additional
limitations. [ECF #9-2, p. 25].
However, this Court understands Plaintiff’s argument to be that the use of a vocational expert
in this case was unnecessary because the ALJ, in adhering to SSR 83-12, should have found that
Plaintiff’s limitations were “significantly reduced,” and therefore rely on the Medical-Vocational Rules
as a framework to determine that Plaintiff was disabled. In this case, Plaintiff’s ability to perform job
duties falls somewhere in the middle of sedentary work and light work. In such instances, the MedicalVocational Guidelines (the “Grid”) are used as a framework, rather than to expressly direct a finding
of “disabled” or “not disabled.”1 In Burgess v. Astrue, the Court explained that SSR 83-12 did not
mandate reversal of the Commissioner’s decisions where the ALJ did not set out specific findings

1

See Hall v. Harris, 658 F.2d 260, 265 (4th Cir. 1981) (noting that where the findings as to all factors do
not coincide with the criteria of a particular rule, the rule serves as a guideline along with the principles
and definitions in the regulations, and full consideration must be given to all relevant facts in the case).

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regarding the erosion of the occupational base when the ALJ relies upon a vocational expert’s analysis
of the precise question of whether there are jobs in the economy a claimant can perform. Burgess v.
Astrue, No. 2:07-3022, 2008 WL 4904874, at *6 (D.S.C. Nov. 13, 2008). Furthermore, SSR 83-12
considers the special situation of alternating between sitting and standing, and provides “[i]n cases of
unusual limitation of ability to sit or stand, a VS (vocational specialist) should be consulted to clarify
the implications for the occupational base.” SSR 83-12, 1983 WL 31253, *4. This Court finds that the
ALJ appropriately relied upon testimony from the vocational expert and adequately explained his
reasons for his findings, given that Plaintiff’s exertional capacity fell in the middle of two rules, giving
him a mixed RFC, and directing opposite conclusions as to the finding of a disability. Accordingly, the
ALJ’s determination that Plaintiff is not disabled, particularly after hearing testimony from a vocational
expert, is supported by substantial evidence and does not constitute legal error.
This Court’s review of Bisceglia v. Colvin, 173 F. Supp. 3d 326 (E.D. Va. 2016) does not
otherwise provide strong support for Plaintiff’s position. In Bisceglia, the claimant disputed the ALJ’s
RFC determination that claimant could perform light work because the ALJ claimed it was based on
the findings of the state agency consultants who, contrary to the ALJ’s opinion, found the claimant’s
maximum sustained capacity was for sedentary work. Id. at 330. Plaintiff does not dispute the RFC
determination in this case; nor did the state agency consultants opine that Plaintiff could only perform
sedentary work. Bisceglia also remanded the case because that court found that the ALJ erred in failing
to properly apply the SSA’s Grid rules to the claimant’s alleged disabilities. Id. at 335. However,
beyond noting that the ALJ did not mention the Grid rules for sedentary work, the Bisceglia Court found
an obvious conflict in the fact that the ALJ’s decision found that the claimant’s limitation impeded her
ability to perform “all or substantially all of the requirements of light work,” but the ALJ did not

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otherwise use the Grid rules for sedentary work. Id. at 336. Here, the ALJ noted that Plaintiff does not
have the ability to perform all or substantially all of the requirements of light work because of the
additional standing/walking limitation, and relied upon the testimony of the vocational expert to
determine the extent of those limitations and what jobs Plaintiff would be capable of performing, given
a hypothetical that took into account this additional limitation. Moreover, ultimately the RFC
determination was supported by the state agency consultants’ opinions, the only opinions regarding
Plaintiff’s ailments that are a part of the record. Given the explanation provided by the ALJ and the
record before this Court, this Court finds that this decision is supported by substantial evidence.
Finally, Plaintiff alleges that the ALJ applied an improper legal standard in failing to
appropriately comply with SSR 83-12, and the Magistrate Judge failed to consider this issue. Plaintiff
cites to Myers v. Califano, 611 F.2d 980 (4th Cir. 1980) to argue that the “substantial evidence”
standard only applies to factual findings. In Myers, the Fourth Circuit noted that while a review of the
Secretary’s factual findings will be upheld if supported by substantial evidence, the ultimate conclusions
must be legally correct. In reviewing for any legal error, this Court does not find that the ALJ
committed legal error by not expressly stating why he did not apply the sedentary rule in this case, given
the analysis provided above. The ALJ’s ultimate conclusions based on those factual findings are legally
correct. Accordingly, substantial evidence exists in the record to support this decision, and this Court
finds that the Commissioner’s decision should be affirmed.
Conclusion
The Court has thoroughly reviewed the entire record as a whole, including the administrative
transcript, the briefs, the Magistrate Judge’s R & R, Plaintiff’s objections to the R & R, Defendant’s
response to Plaintiff’s objections, and the applicable law. For the foregoing reasons, the Court adopts

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the recommendation of the Magistrate Judge. [ECF #20]. The Commissioner’s decision is affirmed
pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
Florence, South Carolina
May 2, 2017

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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