Clark v. Commissioner of the Social Security Administration

Filing 20

ORDER RULING ON REPORT AND RECOMMENDATION: The Court hereby ADOPTS the R&R as the order of the Court, REVERSES the decision of the Commissioner pursuant to Sentence Four of 42 U.S.C. § 405(g), and REMANDS the case to the agency for further action. Signed by Honorable Richard M Gergel on 10/2/2017. (gnan )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Melissa Gail Clark,
Plaintiff,
vs.
Nancy A. Berryhill, Acting Commissioner
of Social Security,
Defendant.

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Civil Action No. 4:16-3571-RMG

ORDER

Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of the final decision of the Commissioner of Social Security denying her claim
for Supplemental Security Income (" SSI"). In accordance with 28 U.S.C. § 636(b) and Local
Civil Rule 73 .02 DSC, this matter was referred to a United States Magistrate Judge for pre-trial
handling. The Magistrate Judge issued a Report and Recommendation ("R & R") on September
18, 2017 recommending that the decision of the Commissioner be reversed and remanded to the
agency. (Dkt. No. 16). The Commissioner filed a response indicating that she did not intend to
file objections to the R & R. (Dkt. No. 18). The Court adopts the R & R as the order of the
Court and remands the matter to the agency for further administrative processing consistent with
this opinion.

Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Web er, 423 U.S. 261 (1976). The Court is charged with making a de nova

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determination of those portions of the Report and Recommendation to which specific objection is
made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(l).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. The Act provides that the "findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive." 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, 331F.2d541, 543 (4th Cir. 1964). This
standard precludes de nova review of the factual circumstances that substitutes the Court's
findings of fact for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir.
1971).
Although the federal court's review role is a limited one, "it does not follow, however,
that the findings of the administrative agency are to be mechanically accepted. The statutorily
granted right ofreview contemplates more than an uncritical rubber stamping of the
administrative action. " Flackv. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). Further, the
Commissioner's findings of fact are not binding if they were based upon the application of an
improper legal standard. Coffman v. Bowen, 829 F .2d 514, 519 (4th Cir. 1987).
Discussion

Plaintiff applied for SSI on March 25, 2013, when she was 44 years of age. She alleged
she was disabled because of a combination of physical and mental impairments. A hearing was
conducted by an Administrative Law Judge (ALJ) on March 12, 2015. The ALJ found that
Plaintiff suffered from a myriad of severe physical and mental impairments, including
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degenerative disc disease, arthritis of the right knee, diabetes, obesity, affective disorder, and
anxiety. Tr. 13. Despite these severe impairments, the ALJ found that Plaintiff retained the
residual functional capacity to perform less than the full scope of light work. Among Plaintiffs
limitations were a requirement that any position have a sit/stand option and that she must be able
to use a hand-held assistive device, such as a cane, "to ambulate to the work station." Tr. 16.
Under the circumstances presented by Plaintiffs impairments, the Commissioner was
required to obtain the opinion of a vocational expert to establish that there existed jobs in
significant numbers in the national economy which Plaintiff could perform. At this stage of the
sequential process, the burden is on the Commissioner to demonstrate the presence of such jobs
in the national economy. Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989).
A vocational expert, Robert Brabum, was presented by the Commissioner to offer this
essential evidence. The vocational expert was asked by the ALJ as part of a hypothetical
question whether Plaintiff could perform light work with certain specific limitations, including
the use of a hand-held assistive device. Tr. 70-71. This limitation was in recognition of the wellestablished fact that Plaintiff required the use of a cane, which had been prescribed by her
treating physician. Tr. 53 , 295, 316. The vocational expert responded that there were jobs in the
national economy which Plaintiff could perform. Tr. 71-72. Plaintiffs counsel then asked the
vocational expert if his opinion anticipated that the claimant would need the hand-held assistive
device for balancing. Tr. 72. The vocational expert stated that he had not understood the
Plaintiff would need to use the hand-held device for balancing, rather than simply to assist in
ambulating to the work space. Mr. Brabum stated that if the Plaintiff needed a hand-held
assistive device for balancing, "you' re in essence taking one hand away from work up to four
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hours in an eight-hour day" and the use of both hands is a "primary tool" for the type of unskilled
work Plaintiff might be capable of performing. Tr. 73-74. Consequently, the vocational expert
concluded that if Plaintiff required the use of a hand-held device, such as a cane, for balancing,
there would be no jobs in the national economy for her to perform at the light level. Tr. 74.
The ALJ found Plaintiff had the residual functional capacity to perform light work despite
the need for the use of a hand-held assistive device "to ambulate to the workstation." Tr. 16. As
the Magistrate Judge noted, there is a significant amount of evidence in the record indicating that
Plaintiff uses her cane for balancing. This includes the sworn testimony of Plaintiff that "I have a
cane because it helps me to steady myself to be able to walk because I have fallen in the past,"
and the finding of a consulting medical examiner, Dr. Gordon Early, that Plaintiff "uses a cane
for balance." Tr. 53, 316. Dr. Early also documented that Plaintiff had a "waddling gait with
external rotation of either foot. " Tr. 317. The record further shows that a treating physician of
Plaintiff, Dr. Lance Miller, prescribed a cane for Plaintiff in April 2012 and diagnosed her with
degenerative disc disease, chronic lower back pain, and arthritic knee pain. Tr. 295, 296, 325.
These conditions were undoubtedly aggravated by Plaintiffs obesity. Dr. Miller documented in
his office record in June 2012 that Plaintiff had fallen two weeks earlier and injured her knee.
Tr. 304-05 . In short, there is evidence in the record indicating that Plaintiff utilized a cane for
balancing, making it is essential on remand for the ALJ to weigh all relevant evidence on this
issue in light of the testimony of the vocational expert that if Plaintiff required a cane for
balancing there would be no jobs in the national economy involving light work which she could
perform.

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The Magistrate Judge appropriately found that the failure of the ALJ to address the issue
of whether Plaintiff used her cane for balancing constituted legal error and required reversal of
the Commissioner's decision. Dkt. No. 16 at 10-11. The Court agrees and adopts the Magistrate
Judge ' s R & Ras the order of the Court.

Conclusion
Based upon the foregoing, the Court hereby ADOPTS the R & Ras the order of the
Court, REVERSES the decision of the Commissioner pursuant to Sentence Four of 42 U.S.C. §
405(g), and REMANDS the case to the agency for further action consistent with this order.
AND IT IS SO ORDERED.

United States District Judge

Charleston, South Carolina
October ~' 2017

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