Dawson v. Commissioner of Social Security

Filing 50

ORDER adopting the 36 Report and Recommendation,REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this opinion pursuant to Sentence Four of 42 U.S.C. §405(g).. Signed by Honorable Richard M Gergel on 1/22/13.(jsmi, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Eric Alexander Dawson,
Plaintiff,
vs.
Michael J. Astrue, Commissioner
of Social Security,
Defendant.

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Civil Action No.8: 11-1759-RMG

ORDER

Plaintiffhas brought this action pro se pursuant to 42 U.S.C. § 405(g) seeking judicial review
of the final decision of the Commissioner of Social Security denying his claim for disability
insurance benefits. In accord with 28 U.S.C. § 636(b) and Local Civil Rule 73.02, D.S.C., this
matter was referred to a United States Magistrate Judge for pre-trial handling. The Magistrate Judge
issued a Report and Recommendation on October 31,2012, recommending that the Commissioner's
decision be reversed and remanded. (Dkt. No. 36). The Commissioner filed objections to the
Magistrate Judge's report and Plaintiff filed a reply. (Dkt. Nos. 39,45). As explained more fully
below, the Court adopts the Report and Recommendation of the Magistrate Judge, reverses the
decision of the Commissioner, and remands the matter for further action consistent with this order.

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. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo
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detennination 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)(1).
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 Secretary 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 a preponderance." Thomas

v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard precludes de novo 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 (4th Cir. 1971).
Although the federal court's review role is a limited one, "it does not follow ... that the
findings of the administrative agency are to be mechanically accepted. The statutorily granted right
ofreview contemplates more than an uncritical rubber stamping ofthe administrative action." Flack

v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). This is particularly true where the claimant is pro se
since the Court should liberally construe all pleadings and confinn the Commissioner fulfilled his
obligation to "scrupulously and conscientiously probe into, inquire of, and explore for all the relevant
facts" in the record of the unrepresented party. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980)
(citing Gold v. Sec yo!Health, Educ. and Welfare, 463 F.2d 38, 43 (2nd Cir. 1972)). Further, the
Commissioner's findings of fact are not binding if they were based upon the application of an
improper legal standard. See Coffman v. Bowen, 829 F.2d 514, 519 (4th Cir. 1987).
The Commissioner, in passing upon an application for disability benefits, is required to
undertake a five-step sequential process. At Step One, the Commissioner must detennine whether
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the applicant is engaged in substantial gainful work. 20 C.F.R. § 404.lS20(a)(4)(i). Ifthe claimant
is not engaged in substantial gainful employment, the Commissioner proceeds to Step Two, which
involves a determination whether the claimant has any "severe medically determinable physical or
mental impairment." Id. § 404. 1520(a)(4)(ii). If the claimant has one or more severe impairments,
the Commissioner proceeds to Step Three, which involves a determination whether any impairment
ofthe claimant satisfies anyone of a designated list of impairments that would automatically render
the claimant disabled. Id. § 404.1 520(a)(4)(iii).
If the claimant does not have a listed impairment, the Commissioner must proceed to Step
Four, which involves an assessment of the claimant's Residual Functional Capacity ("RFC").

Id. § 404.1S20(a)(4)(iv). This requires assessment of the claimant's ability "to meet the physical,
mental, sensory, and other requirements of work ...." Id. § 404.1S45(a)(4). In determining the
claimant's RFC, the Commissioner "must first identify the individual's functional limitations or
restrictions" and provide a narrative "describing how the evidence supports each conclusion, citing
specific medical facts ... and nonmedical evidence ...." SSR 96-8P, 61 Fed. Reg. 34474,34475,
34478 (July 2, 1996).
Once the claimant's RFC determined, the Commissioner must assess whether the claimant
can do his past relevant work. 20 C.F.R. §§ 404.1520(4)(iv), 1545(a)(5)(i). If the claimant,
notwithstanding the RFC determination, can still perform his past relevant work, he is deemed not
to be disabled. If the claimant cannot perform his past relevant work, the Commissioner then
proceeds to Step Five to determine if there is other available work in the national economy he can
perform in light of the RFC determination. Id. § 404.1520(a)(4)(v).

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Discussion
Plaintiff asserts in his application for disability that he is disabled because of a variety of
medically-related impairments, including degenerative conditions in his back, knee and shoulder and
diabetes. The ALJ found that Plaintiff had severe impairments including "hepatis C, degenerative
joint disease, shoulder dysfunction/arthritis/degenerative joint disease, back disorder with pain and
diabetes mellitus with neuropathy." Transcript of Record ("Tr.") at 12. After determining that
Plaintiff had no impairment satisfying the listings at Step Three, the ALJ made a finding that
Plaintiff had the RFC to perform light work. Id. at 13. He further found Plaintiff could lift/carry
twenty pounds occasionally and ten pounds frequently, sit six hours in an eight hour day and
stand/walk for six hours out of an eight hour day. Id.
Having determined that Plaintiff had the RFC to do light work, the ALJ then assessed
whether Plaintiff could return to his past relevant work as a night watchman, reader/scorer or pizza
deliverer. The ALJ found that "the claimant is able to perform [such prior relevant work] as it is
actually and generally performed." Id. at 15. The ALJ then proceeded to add that he concurred with
the vocational expert's opinion that the claimant could perform his past relevant work as a night
watchman and reader/scorer "with restrictions in operating foot controls; in overhead lifting and in
right foot pushing ...." Id. at 15.
The Magistrate Judge found the ALJ's reference to restrictions in Plaintiff's functioning
during the discussion ofPlaintiff' s past relevant work perplexing since there was no mention of such
restrictions in the residual functional capacity assessment. (Dkt. No. 36 at 20). This is not a small
matter. Since every residual functional capacity assessment "must first identify the individual's
functional limitations" and the fact finder must then in narrative form describe "how the evidence
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supports each conclusion ... ," the failure to address the claimant's functional limitations in the RFC
assessment makes substantial evidence review of the RFC essentially impossible. SSR 96-8P, 61
Fed. Reg. at 34475, 34478.
The Commissioner argues that the ALJ actually rej ected the functional limitations referenced
in the discussion of past relevant work, making the reference to the limitations in the decision
something like idle chatter. Another logical interpretation is that the ALJ meant to incorporate the
functional limitations into the RFC assessment and inadvertently failed to do so. In any event, the
Court can not be left to guess the meaning of an unclearly articulated decision. Remand is therefore
necessary so that the agency can clearly and unambiguously identifY all functional limitations that
form part of the RFC assessment, and provide a narrative statement describing how the evidence
supports the conclusions it reaches. Only then will this Court be able to make a substantial evidence
review of such a RFC assessment.

Conclusion
Based upon the foregoing, the Court hereby ADOPTS the Report and Recommendation of
the Magistrate Judge, REVERSES the decision of the Commissioner and REMANDS this matter
for further proceedings consistent with this opinion pursuant to Sentence Four of42 U.S.C. § 405(g).

AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Judge

January~Ol3

Charleston, South Carolina
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