Usery v. Commissioner of Social Security
ORDER that the Commissioner's decision is REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case is REMANDED to the Commissioner for further administrative action. Signed by Magistrate Judge Jacquelyn D Austin on 9/9/11. (gpre, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
Dale W. Usery,
Michael J. Astrue,
Commissioner of Social Security,
Civil Action No. 8:10-CV-775-JDA
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
Section 1383(c)(3) provides, “The final determ ination of the Com m issioner of Social Security after a
hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the
sam e extent as the Com m issioner’s final determ inations under section 405 of this title.” 42 U.S.C. §
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].
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 a
Plaintiff previously filed applications for DIB and SSI in March 1999. [R. 12.] His applications were denied
initially and upon reconsideration. [Id.] An ALJ rendered an unfavorable decision on these claim s in
Decem ber 2000. [Id.] Plaintiff requested Appeals Council review of that decision. [Id.] On May 30, 2002,
the Appeals Council rem anded the ALJ’s decision for a new decision and hearing. [Id.] After a hearing, the
ALJ issued another unfavorable decision on August 8, 2003. [Id.] The Appeals Council denied Plaintiff’s
request for review on June 23, 2004. [Id.] Plaintiff did not pursue these claim s thereafter. [Id., R. 83-92.]
low 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 residual
functional 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. 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
The Com m issioner also argues that, even assum ing the ALJ erred in evaluating Dr. Steinert’s opinion,
the jobs identified by the vocational expert that the ALJ found Plaintiff could perform m ore than adequately
accom m odated the m anipulative lim itations assigned by Dr. Steinert. [Doc. 17 at 22.]
evidence to justify a refusal to direct a verdict were the case before a jury, then there is
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 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 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 claimant
may 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 prior proceeding . . . .
42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the
basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the
determination of disability at the time the application was first filed; (2) the evidence is
material to the extent that the Commissioner’s decision might reasonably have been
different had the new evidence been before him; (3) there is good cause for the claimant’s
failure to submit the evidence when the claim was before the Commissioner; and (4) the
claimant made at least a general showing of the nature of the new evidence to the
reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. §
405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d
26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by
amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec’y, Dep’t of
Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991).4 With remand under sentence
Though the court in W ilkins indicated in a parenthetical that the four-part test set forth in Borders had been
superseded by an am endm ent to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the
requirem ents outlined in Borders when evaluating a claim for rem and based on new evidence. See, e.g.,
Ashton v. Astrue, No. 6:10-cv-152, 2010 W L 5478646, at *8 (D.S.C. Nov. 23, 2010); W ashington v. Comm’r
of Soc. Sec., No. 2:08-cv-93, 2009 W L 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec’y of Health &
Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W . Va. 1992). Further, the Suprem e Court of the United
States has not suggested Borders’ construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S.
six, the parties must return to the court after remand to file modified findings of fact.
Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and
does not enter a final judgment until after the completion of remand proceedings. See
Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an
order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C.
§ 405(g) is not a final order).
The Act provides that disability benefits shall be available to those persons insured
for benefits, who are not of retirement age, who properly apply, and who are under a
disability. 42 U.S.C. § 423(a). “Disability” is defined 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 consecutive months.
Id. § 423(d)(1)(A).
The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations
have reduced the statutory definition of disability to a series of five sequential questions.
See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a “need for efficiency”
in considering disability claims). The ALJ must consider whether (1) the claimant is
engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the
impairment meets or equals an impairment included in the Administration’s Official Listings
617, 626 n.6 (1990). Accordingly, the Court will apply the m ore stringent Borders inquiry.
of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents
the claimant from performing past relevant work; and (5) the impairment prevents the
claimant from having substantial gainful employment. 20 C.F.R. §§ 404.1520, 416.920.
Through the fourth step, the burden of production and proof is on the claimant. Grant v.
Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or
before the last day of her insured status to receive disability benefits. Everett v. Sec’y of
Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step
five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the
national economy that the claimant can perform, considering the claimant’s age, education,
and work experience. Id. If at any step of the evaluation the ALJ can find an individual is
disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a),
416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
Substantial Gainful Activity
“Substantial gainful activity” must be both substantial—involves doing significant
physical or mental activities, 20 C.F.R. §§ 404.1572(a), 416.972(a)—and gainful—done for
pay or profit, whether or not a profit is realized, 20 C.F.R. §§ 404.1572(b), 416.972(b). If
an individual has earnings from employment or self-employment above a specific level set
out in the regulations, he is generally presumed to be able to engage in substantial gainful
activity. 20 C.F.R. §§ 404.1574–.1575, 416.974–.975.
An impairment is “severe” if it significantly limits an individual’s ability to perform
basic work activities. See 20 C.F.R. §§ 404.1521, 416.921. When determining whether
a claimant’s physical and mental impairments are sufficiently severe, the ALJ must
consider the combined effect of all of the claimant’s impairments.
42 U.S.C. §§
423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole
person and not in the abstract, having several hypothetical and isolated illnesses. Walker
v. Bowen, 889 F.2d 47, 49–50 (4th Cir. 1989) (stating that, when evaluating the effect of
a number of impairments on a disability claimant, “the [Commissioner] must consider the
combined effect of a claimant’s impairments and not fragmentize them”). Accordingly, the
ALJ must make specific and well-articulated findings as to the effect of a combination of
impairments when determining whether an individual is disabled. Id. at 50 (“As a corollary
to this rule, the ALJ must adequately explain his or her evaluation of the combined effects
of the impairments.”). If the ALJ finds a combination of impairments to be severe, “the
combined impact of the impairments shall be considered throughout the disability
determination process.” 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant’s impairment or combination of impairments meets or medically equals
the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration
requirement found at 20 C.F.R. §§ 404.1509 or 416.909, the ALJ will find the claimant
disabled without considering the claimant’s age, education, and work experience. 20
C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii), (d).
Past Relevant Work
The assessment of a claimant’s ability to perform past relevant work “reflect[s] the
statute’s focus on the functional capacity retained by the claimant.” Pass v. Chater, 65
F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the
claimant’s residual functional capacity5 with the physical and mental demands of the kind
of work he has done in the past to determine whether the claimant has the residual
functional capacity to do his past work. 20 C.F.R. §§ 404.1560(b), 416.960(b).
As previously stated, once the ALJ finds that a claimant cannot return to her prior
work, the burden of proof shifts to the Commissioner to establish that the claimant could
perform other work that exists in the national economy. See 20 C.F.R. §§ 404.1520(f)–(g),
416.920(f)–(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden,
the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines
(the “grids”). Exclusive reliance on the “grids” is appropriate where the claimant suffers
primarily from an exertional impairment, without significant nonexertional factors.6 20
C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930–31
(4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving
Residual functional capacity is “the m ost [a claim ant] can do despite [his] lim itations.” 20 C.F.R. §
An exertional lim itation is one that affects the claim ant’s ability to m eet the strength requirem ents of jobs.
20 C.F.R. § 404.1569a. A nonexertional lim itation is one that affects the ability to m eet the dem ands of the
job other than the strength dem ands. Id. Exam ples of nonexertional lim itations include but are not lim ited
to difficulty functioning because of being nervous, anxious, or depressed; difficulty m aintaining attention or
concentrating; difficulty understanding or rem em bering detailed instructions; difficulty seeing or hearing. Id.
exertional limitations). When a claimant suffers from both exertional and nonexertional
limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case,
the Commissioner must use a vocational expert to establish the claimant’s ability to
perform other work. 20 C.F.R. §§ 404.1569a, 416.969a; see Walker, 889 F.2d at 49–50
(“Because we have found that the grids cannot be relied upon to show conclusively that
claimant is not disabled, when the case is remanded it will be incumbent upon the
[Commissioner] to prove by expert vocational testimony that despite the combination of
exertional and nonexertional impairments, the claimant retains the ability to perform
specific jobs which exist in the national economy.”). The purpose of using a vocational
expert is “to assist the ALJ in determining whether there is work available in the national
economy which this particular claimant can perform.” Walker, 889 F.2d at 50. For the
vocational expert’s testimony to be relevant, “it must be based upon a consideration of all
other evidence in the record, . . . and it must be in response to proper hypothetical
questions which fairly set out all of claimant’s impairments.” Id. (citations omitted).
Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783
F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant
issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important
when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir.
1980). In such circumstances, “the ALJ should scrupulously and conscientiously probe
into, inquire of, and explore for all the relevant facts, . . . being especially diligent in
ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id.
(internal quotations and citations omitted).
The opinion of a claimant’s treating physician must “be given great weight and may
be disregarded only if there is persuasive contradictory evidence” in the record. Coffman
v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987) (citing Foster v. Heckler, 780 F.2d 1125, 1130
(4th Cir. 1986) (holding that a treating physician’s testimony is entitled to great weight
because it reflects an expert judgment based on a continuing observation of the patient’s
condition over a prolonged period of time); Mitchell v. Schweiker, 699 F.2d 185, 187 (4th
Cir. 1983)). If a treating physician’s opinion on the nature and severity of a claimant’s
impairments is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence” in the record, the
ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see
Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating
physician’s opinion if it is unsupported or inconsistent with other evidence. Craig, 76 F.3d
at 590. Similarly, where a treating physician has merely made conclusory statements, the
ALJ may afford the opinion such weight as is supported by clinical or laboratory findings
and other consistent evidence of a claimant’s impairments. See id. (holding there was
sufficient evidence for the ALJ to reject the treating physician’s conclusory opinion where
the record contained contradictory evidence).
When a treating physician’s opinion does not warrant controlling weight, the ALJ
must nevertheless assign a weight to the medical opinion based on the 1) length of the
treatment relationship and the frequency of examination; 2) nature and extent of the
treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with
the record a whole; 5) specialization of the physician; and 6) other factors which tend to
support or contradict the opinion. 20 C.F.R. §§ 404.1527(d), 416.927(d). In any instance,
a treating physician’s opinion is generally entitled to more weight than a consulting
physician’s opinion. See Mitchell, 699 F.2d at 187 (stating that treating physician’s opinion
must be accorded great weight because “it reflects an expert judgment based on a
continuing observation of the patient’s condition for a prolonged period of time”); 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2). An ALJ determination coming down on the side of a
non-examining, non-treating physician’s opinion can stand only if the medical testimony of
examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346
The ALJ is required to review all of the medical findings and other evidence that
support a medical source’s statement that a claimant is disabled.
20 C.F.R. §§
However, the ALJ is responsible for making the ultimate
determination about whether a claimant meets the statutory definition of disability. Id.
Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a
claimant’s medical sources do not give sufficient medical evidence about an impairment
to determine whether the claimant is disabled. 20 C.F.R. §§ 404.1517, 416.917; see also
Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a
consultative examination is not required when there is sufficient medical evidence to make
a determination on a claimant’s disability. 20 C.F.R. §§ 404.1517, 416.917. Under the
regulations, however, the ALJ may determine that a consultative examination or other
medical tests are necessary. Id.
Congress has determined that a claimant will not be considered disabled unless he
furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing
the existence of a medical impairment that could reasonably be expected to produce the
pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). In evaluating claims of disabling
pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App’x 716,
723 (4th Cir. 2005) (unpublished opinion). First, “the ALJ must determine whether the
claimant has produced medical evidence of a ‘medically determinable impairment which
could reasonably be expected to produce . . . the actual pain, in the amount and degree,
alleged by the claimant.’” Id. (quoting Craig, 76 F.3d at 594). Second, “if, and only if, the
ALJ finds that the claimant has produced such evidence, the ALJ must then determine, as
a matter of fact, whether the claimant’s underlying impairment actually causes her alleged
pain.” Id. (emphasis in original) (citing Craig, 76 F.3d at 595).
Under the Fourth Circuit’s “pain rule,” it is well established that “subjective
complaints of pain and physical discomfort can give rise to a finding of total disability, even
when those complaints [a]re not supported fully by objective observable signs.” Coffman,
829 F.2d at 518. The ALJ must consider all of a claimant’s statements about his
symptoms, including pain, and determine the extent to which the symptoms can reasonably
be accepted as consistent with the objective medical evidence. 20 C.F.R. §§ 404.1528,
416.928. Indeed, the Fourth Circuit has rejected a rule which would require the claimant
to demonstrate objective evidence of the pain itself, Jenkins v. Sullivan, 906 F.2d 107, 108
(4th Cir. 1990), and ordered the Commissioner to promulgate and distribute to all
administrative law judges within the circuit a policy stating Fourth Circuit law on the subject
of pain as a disabling condition, Hyatt v. Sullivan, 899 F.2d 329, 336–37 (4th Cir. 1990).
The Commissioner thereafter issued the following “Policy Interpretation Ruling”:
This Ruling supersedes, only in states within the Fourth
Circuit (North Carolina, South Carolina, Maryland, Virginia and
West Virginia), Social Security Ruling (SSR) 88-13, Titles II
and XVI: Evaluation of Pain and Other Symptoms:
FOURTH CIRCUIT STANDARD: Once an underlying
physical or [m]ental impairment that could reasonably be
expected to cause pain is shown by medically acceptable
objective evidence, such as clinical or laboratory diagnostic
techniques, the adjudicator must evaluate the disabling effects
of a disability claimant’s pain, even though its intensity or
severity is shown only by subjective evidence. If an underlying
impairment capable of causing pain is shown, subjective
evidence of the pain, its intensity or degree can, by itself,
support a finding of disability. Objective medical evidence of
pain, its intensity or degree (i.e., manifestations of the
functional effects of pain such as deteriorating nerve or muscle
tissue, muscle spasm, or sensory or motor disruption), if
available, should be obtained and considered. Because pain
is not readily susceptible of objective proof, however, the
absence of objective medical evidence of the intensity,
severity, degree or functional effect of pain is not
SSR 90-1p, 55 Fed. Reg. 31, 898-02 (Aug. 6, 1990), superseded by SSR 96-7p, 61 Fed.
Reg. 34,483-01 (July 2, 1996) (“If an individual’s statements about pain or other symptoms
are not substantiated by the objective medical evidence, the adjudicator must consider all
of the evidence in the case record, including any statements by the individual and other
persons concerning the individual’s symptoms.”); see 20 C.F.R. §§ 404.1529(c)(1)–(c)(2),
The ALJ must make a credibility determination based upon all the evidence in the
record. Where an ALJ decides not to credit a claimant’s testimony about pain, the ALJ
must articulate specific and adequate reasons for doing so, or the record must be obvious
as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985).
Although credibility determinations are generally left to the ALJ’s discretion, such
determinations should not be sustained if they are based on improper criteria. Breeden,
493 F.2d at 1010 (“We recognize that the administrative law judge has the unique
advantage of having heard the testimony firsthand, and ordinarily we may not disturb
credibility findings that are based on a witness’s demeanor. But administrative findings
based on oral testimony are not sacrosanct, and if it appears that credibility determinations
are based on improper or irrational criteria they cannot be sustained.”).
APPLICATION AND ANALYSIS
RFC Analysis and Weight Assigned to Dr. Steinert’s Medical Opinion
Plaintiff contends the ALJ’s determination that Plaintiff is capable of frequent
fingering and handling conflicts with consultative examining physician Dr. Harriett Steinert’s
assessment that Plaintiff is extremely limited in the use of his upper extremities and that
Plaintiff would be unable to pick up small objects with his left hand and would have
difficulty picking up small objects with his right hand. Plaintiff relies on SSR 96-8p to argue
the ALJ’s decision in this case is manifestly deficient and not supported by substantial
evidence because the ALJ failed to explain why he did not adopt this limitation. The Court
The Administration has provided a definition of residual functional capacity (“RFC”)
and explained what a RFC assessment accomplishes:
RFC is what an individual can still do despite his or her
limitations. RFC is an administrative assessment of the extent
to which an individual's medically determinable impairment(s),
including any related symptoms, such as pain, may cause
physical or mental limitations or restrictions that may affect his
or her capacity to do work- related physical and mental
activities. Ordinarily, RFC is the individual's maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis, and the RFC
assessment must include a discussion of the individual's
abilities on that basis. A “regular and continuing basis” means
8 hours a day, for 5 days a week, or an equivalent work
schedule. . . .
SSR 96-8p, 61 Fed. Reg. 34,474-01, at 34,475 (July 2, 1996) (internal citation and
footnotes omitted). To assess a claimant’s RFC, the ALJ must consider all relevant
evidence in the record, including medical history, medical signs, laboratory findings, lay
evidence, and medical source statements. Id. at 34,477. SSR 96-8p specifically states,
“The RFC assessment must always consider and address medical source opinions. If the
RFC assessment conflicts with an opinion from a medical source, the adjudicator must
explain why the opinion was not adopted.” Id. at 34,478.
The ALJ stated that he accorded Dr. Steinert’s opinions “some weight” and that he
incorporated her opinions into his RFC assessment by limiting Plaintiff to no more than
frequent handling and fingering. [R. 21.] In deciding to give “some weight” to Dr. Steinert’s
opinion, the ALJ reasoned that the opinion is essentially consistent with the ALJ’s residual
functional capacity findings, i.e., no more than frequent handling and fingering and a
sit/stand at will option. [R. 21.] It is unclear from the ALJ’s reasoning, however, how Dr.
Steinert’s conclusion that Plaintiff is “unable to pick up small objects with the left hand” and
“has difficulty picking up small objects with his right hand as well” supports an ability to
perform no more than “frequent handling and fingering.” If the ALJ considered Plaintiff’s
inability to pick up small objects with his left hand and his difficulty picking up small objects
with his right hand in the RFC assessment, it is not evident from his written decision. If the
ALJ did not adopt these limitations, it is not clear from the record why he discounted them.
Because the ALJ failed to explain either (1) his discounting of Dr. Steinert’s opinion that
Plaintiff is unable to pick up small objects with his left hand and has difficulty picking up
small objects with his right hand,7 or (2) how this opinion is essentially consistent with the
ALJ’s RFC findings,8 the Court finds the ALJ’s RFC analysis is not supported by substantial
The Court notes Dr. Charles Fitts opined Dr. Steinert’s statem ent that Plaintiff would have difficulty with
a job that requires fine m otor skills, lifting or picking up item s, or walking was not com pletely supported by
m edical evidence. [R. 316.] However, the ALJ does not m ention this statem ent or weigh the two contradictory
opinions. The Court is left guess as to how the ALJ weighed the m edical opinions of these two doctors and/or
how the conflicting m edical evidence was addressed.
The Court notes the ALJ found Plaintiff had decreased grip strength, but m edical records indicated Plaintiff
had a full range of m otion of all extrem ities and no m uscle atrophy in any extrem ity. [R. 19.] It is unclear
whether this is the basis for the ALJ’s discounting of this portion of Dr. Steinert’s opinion. In any event, that
the ALJ indicated his RFC is consistent with Dr. Steinert’s findings is confusing at a m inim um and should be
Hypothetical to the Vocational Expert
Plaintiff contends the testimony of the vocational expert (“VE”) does not support the
ALJ’s finding that Plaintiff is capable of making an adjustment to other work that exists in
significant numbers in the national economy. Specifically, Plaintiff argues the jobs the VE
testified are available to Plaintiff require frequent, if not repetitive, use of the upper
extremities, as well as good bi-manual dexterity, which conflicts with the limitations found
by Dr. Steinert.
“In order for a vocational expert’s opinion to be relevant or helpful, it must be based
upon a consideration of all other evidence in the record, and it must be in response to
proper hypothetical questions which fairly set out all of [the] claimant’s impairments.”
Walker v Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (citations omitted)). Because the Court
finds the ALJ’s RFC analysis is not supported by substantial evidence and recommends
remanding for a proper RFC analysis, the ALJ should also reconsider the limitations posed
to the VE and include a discussion of any additional erosion in the occupational base due
to Plaintiff’s determined limitations.9
Finally, Plaintiff argues the Appeals Council erred because it declined his request
for review despite the additional evidence presented and failed to articulate its reasons for
The ALJ found Plaintiff’s lim itations eroded the unskilled sedentary occupational base. [R. 22.] The VE,
in considering Plaintiff’s lim itations, found Plaintiff could perform work as a m achine tender, production
associate, and surveillance m onitor. [R. 378.] However, on cross exam ination by Plaintiff’s counsel, the VE
indicated that the jobs of both m achine tender and production associate require frequent use of the upper
extrem ities as well as good bi-m anual dexterity and that difficulty in fine m anipulation of sm all objects would
interfere with the ability to perform these jobs. [R. 379–81.] Therefore, if the ALJ accepts the additional
lim itations posed by Dr. Steinert, the occupational base m ay be even further eroded. Such further erosion,
if found, should be addressed by the ALJ.
finding the additional evidence did not provide a basis for reviewing the ALJ’s decision.
The additional evidence submitted to the Appeals Council included a “Physical Capacity
Evaluation” (“PCE”) form prepared by his primary care physician, Dr. J. Robert Freeman,
dated September 6, 2007. [R. 332–34.] In this evaluation, Dr. Freeman opined that
Plaintiff can walk, stand, and sit for a total of only five hours in an eight hour period;
Plaintiff’s impairments would require him to take frequent unpredictable and unscheduled
breaks and rest periods if he attempted to work; Plaintiff needed to elevate his right leg
frequently to alleviate pain and swelling; and Plaintiff would be absent from work for more
than four days per month if he attempted to maintain employment. [Id.] The Appeals
Council stated it considered the additional evidence [R. 3], but the Appeals Council denied
Plaintiff’s request for review without articulating its reasons for finding the information did
not provide a basis for changing the ALJ’s decision [R. 4]. The Commissioner argues the
Appeals Council was not required to consider the PCE because it was not “material” as
there was not a reasonable possibility that it would have changed the outcome.
In the Fourth Circuit, a reviewing court must include new evidence reviewed by the
Appeals Council in its consideration of the record as a whole in determining whether
substantial evidence supports the ALJ’s decision:
The Appeals Council must consider evidence submitted with
the request for review in deciding whether to grant review “if
the additional evidence is (a) new, (b) material, and (c) relates
to the period on or before the date of the ALJ’s decision.”
Evidence is new within the meaning of this section if it is not
duplicative or cumulative. Evidence is material if there is a
reasonable possibility that the new evidence would have
changed the outcome.
Wilkins v. Sec’y, Dep’t of Health & Human Servs., 953 F.2d 93, 95–96 (4th Cir. 1991)
(citations and footnote omitted). There is a split of authority as to whether the Appeals
Council should be required to articulate its reasoning when it accepts and considers
additional evidence but denies review of the ALJ’s decision. See Jackson v. Astrue, No.
0:08-cv-579, 2009 WL 1181178, at *5 (D.S.C. May 1, 2009) (discussing split of authority).
Because the Court is remanding the case for a proper RFC analysis, the issue of whether
the Appeals Council should have provided reasons for its decision is moot, and the Court
need not decide whether the Appeals Council must provide reasons for its decision
regarding the new evidence.10 On remand, the ALJ is directed to consider this new
Wherefore, based upon the foregoing, the Commissioner's decision is REVERSED
pursuant to sentence four of 42 U.S.C. § 405(g), and the case is REMANDED to the
Commissioner for further administrative action consistent with this Order.
IT IS SO ORDERED.
s/Jacquelyn D. Austin
United States Magistrate Judge
September 9, 2011
Greenville, South Carolina
The Com m issioner has also requested this Court to hold its decision in abeyance pending the ruling by
the Fourth Circuit on these issues in Meyer v. Astrue, No. 10-1581, which is scheduled for oral argum ent in
October 2011. The Court declines to stay this action and further delay the proceedings. It is unknown at this
tim e whether a review of the m atter by the Appeals Council will be needed or whether any further new
evidence will be subm itted to the Appeals Council.
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