Cross v. Commissioner of the Social Security Administration

Filing 34

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the Report and Recommendation (ECF No. 28 ) and incorporates it herein. Therefore, it is the judgment of the Court Kijakazi's final decision denying Cross' s claims is REVERSED and this matter is REMANDED to her, in accordance with sentence four of 42 U.S.C. § 405(g), for further proceedings in accordance with the Report. IT IS SO ORDERED. Signed by Honorable Mary Geiger Lewis on 3/27/2024. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
CHARLES C. CROSS,
Plaintiff,
vs.

§
§
§
§
KILOLO KIJAKAZI, Acting Commissioner of §
Social Security,
§
Defendant.
§

CIVIL ACTION NO. 4:22-4333-MGL

ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND REVERSING AND REMANDING
DEFENDANT’S FINAL DECISION DENYING BENEFITS
This is a Social Security appeal in which Plaintiff Charles C. Cross (Cross) seeks judicial
review of the final decision of Kilolo Kijakazi, Acting Commissioner of Social Security
(Kijakazi),denying his claims for disability insurance benefits (DIB) and supplemental security
income (SSI). The matter is before the Court for review of the Report and Recommendation
(Report) of the United States Magistrate Judge suggesting Kijakazi’s final decision denying Cross’s
claims be reversed and this matter be remanded to her, in accordance with sentence four of 42
U.S.C. § 405(g), for further proceedings in accordance with the Report.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and the Court 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 Magistrate Judge filed the Report on September 20, 2024, Kijakazi filed her objections
on September 29, 2024, and Cross filed a reply on March 25, 2024. The Court has carefully
reviewed Kijakazi’s objections, but holds them to be without merit. It will therefore enter judgment
accordingly.
Cross filed an application for DIB and SSI in August 2020, alleging disability beginning
July 17, 2020. His claims were denied initially and upon reconsideration. Thereafter, Cross filed
a request for a hearing. A hearing was held in January 2022, at which time Cross and a vocational
expert testified.
The Administrative Law Judge (ALJ) issued an unfavorable decision on January 18, 2022,
finding Cross was unable to show he was disabled within the meaning of the Act. Cross submitted
additional evidence to the Appeals Council, a statement from his treating cardiologist, Dr. William
F. Brabham (Brabham).
Cross filed a request for review of the ALJ’s decision, which the Appeals Council denied in
September 2022, making the ALJ’s decision Defendant’s final decision. Cross then filed this action
with the Court in November 2022.
The Agency has established a five-step sequential evaluation process for determining if a
person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). The five steps are: (1) whether the
claimant is currently engaging in substantial gainful activity; (2) whether the claimant has a
medically determinable severe impairment(s); (3) whether such impairment(s) meets or equals an
impairment set forth in the Listings; (4) whether the impairment(s) prevents the claimant from
returning to her past relevant work; and, if so, (5) whether the claimant is able to perform other work
as it exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(I)-(v), 416.920(a)(4)(I)-(v).

2

Under 28 U.S.C. § 636(b)(1), a district court is required to conduct a de novo review of those
portions of the Magistrate Judge’s Report to which a specific objection has been made. The Court
need not conduct a de novo review, however, “when a party makes general and conclusory
objections that do not direct the court to a specific error in the [Magistrate Judge’s] proposed
findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
It is the claimant’s duty both to produce evidence and prove she is disabled under the Act.
Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Nevertheless, the ALJ is to develop the record
and when he”fails in his duty to fully inquire into the issues necessary for adequate development of
the record, and such failure is prejudicial to the claimant, the case should be remanded.” Marsh v.
Harris, 632 F.2d 296, 300 (4th Cir. 1980).
It is also the task of the ALJ, not this Court, to make findings of fact and resolve conflicts
in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). “It is not within the
province of this [C]ourt to determine the weight of the evidence; nor is it [the Court’s] function to
substitute [its] judgment for that of [the defendant] if [the] decision is supported by substantial
evidence.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
In other words, the Court “must sustain the ALJ’s decision, even if [it] disagree[s] with it,
provided the determination is supported by substantial evidence.” Smith v. Chater, 99 F.3d 635, 638
(4th Cir. 1996). Under the substantial evidence standard, the Court must view the entire record as
a whole. Steurer v. Bowen, 815 F.2d , 1249, 1250 (8th Cir. 1987).
Although ALJs must sufficiently explain the reasons for their rulings to allow this Court to
provide meaningful review, Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013), “the ALJ is not
required to address every piece of evidence[;] [instead,] he must . . . build an accurate and logical

3

bridge from the evidence to his conclusion.” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)
(citations omitted). The Court’s “general practice, which [it] see[s] no reason to depart from here,
is to take a lower tribunal at its word when it declares that it has considered a matter.” Hackett v.
Barnhart, 395 F.3d 1168, 1173 (10th Cir.2005).
“[T]he substantial evidence standard presupposes a zone of choice within which the
decisionmakers can go either way, without interference by the courts. An administrative decision
is not subject to reversal merely because substantial evidence would have supported an opposite
decision.” Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988) (citations omitted) (internal
quotation marks omitted) (alteration omitted). Put differently, if the ALJ’s “dispositive factual
findings are supported by substantial evidence, they must be affirmed, even in cases where contrary
findings of an ALJ might also be so supported.” Kellough v. Heckler, 785 F.2d 1147, 1149 (4th Cir.
1986).
In the Report, the Magistrate Judge states the following:
[Although] the ALJ here cited a plethora of abnormal and normal
evidence as to edema and leg elevation and recited [Cross’s]
allegations as to elevation, the ALJ never provided an explanation of
how he arrived at 5%, or 24 minutes off task of a work day. The
[C]ourt cannot engage in meaningful review where the ALJ [provides
only] a conclusion of five percent off task. Remand is appropriate
where inadequacies in the ALJ’s analysis frustrate meaningful
review.
Report at 11.
Kijakazi’s offers just one objection to the Magistrate Judge’s Report. She argues the
Magistrate Judge erred in “want[ing] the ALJ to set forth a mathematical equation, or expressly
adopt a medical opinion, to explain how he reached the five-percent number in the RFC finding.”
Objections at 2. According to Kijakazi, “such a precise and demanding requirement goes above and
4

beyond the modest articulation standard necessary to facilitate deferential substantial evidence
review under the Social Security Act.” Id. “And here,” Kijakazi contends, “where no doctor or
expert opined during the period at issue . . . [Cross] would require any worktime to elevate his legs,
it was quite clear why the ALJ found [he] would be off task ‘no more’ than 5% of the workday to
perform such an activity.” Id. (emphasis omitted).
Kijakazi cites to a recent unpublished Fourth Circuit opinion in support of her argument,
Rebecca J. v. Kijakazi, No. 22-1531, 2023 WL 3970022 (4th Cir. June 13, 2023). In that case, the
ALJ determined the “claimant had the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) except she can sit, stand and walk six hours each in an eight-hour
workday, occasional exposure to the weather, occasional exposure to dust, fumes, odors and
pulmonary irritants, and would be off task seven percent of the workday.” Id. at *2.
On appeal, the claimant “argue[ed] . . . the ALJ failed to build a logical bridge from the
objective evidence to his finding . . . [she] does not need to undertake treatments as frequently or
for the duration that she claims and, consequently, erred in finding that her impairments would only
result in her being off task for up to 7% of the workday.” Id. at *3
The Fourth Circuit disagreed and held “the record in this case is devoid of sufficient
evidence, including opinions and treatment notes, demonstrating that Plaintiff would be off task
more than seven percent of the day to account for her nasal treatment.” Id. at *3 (citation omitted)
(internal quotation marks omitted).
There are several problems with Kijakazi’s argument here. First, without the benefit of the
ALJ’s decision in Rebecca, the Court is unable to know how the ALJ came to the seven percent

5

mark. Perhaps s/he provided a logical bridge as to how s/he arrived at that conclusion, which the
Fourth Circuit reviewed, but neglected to include in its opinion.
The claimant’s argument in Rebecca that “the ALJ failed to build a logical bridge[,]” id.,
fails to signal to this Court the ALJ in that case neglected to offer any explanation whatsoever as to
how s/he came up with the seven percent time period. Surely s/he gave some explanation for how
s/he arrived at the seven percent number. See Patterson v. Com’r Social Sec. Admin., 846 F.3d 656,
663 (4th Cir. 2017) (“[T]he dispute here arises from a problem that has become all too common
among administrative decisions challenged in this court—a problem decision makers could avoid
by following the admonition they have no doubt heard since their grade-school math classes: Show
your work. The ALJ did not do so here, and this error rendered his decision unreviewable.”).
The second difficulty is Rebecca is an unpublished opinion, which is not binding precedent
in this Circuit.
The third issue is the ALJ was unable to consider the additional evidence from Cross’s
cardiologist, Dr. Brabham, which was submitted to the Appeals Council, stating Cross would be off
task at least twenty percent of the work day and that occasional edema required periodical elevation
of legs throughout the day.
Accordingly, after a thorough review of the Report and a de novo review of the record in this
case, pursuant to the standard set forth above, the Court overrules Kijakazi’s objection, adopts the
Report, and incorporates it herein. Therefore, it is the judgment of the Court Kijakazi’s final
decision denying Cross’s claims is REVERSED and this matter is REMANDED to her, in
accordance with sentence four of 42 U.S.C. § 405(g), for further proceedings in accordance with the
Report.

6

IT IS SO ORDERED.
Signed this 27th day of March, 2024, in Columbia, South Carolina.
/s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

7