Cook v. Commissioner of Social Security

Filing 25

ORDER adopting 19 Report and Recommendation, reversing the commissioner's decision, and remanding the case for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Signed by Honorable David C Norton on 02/03/2014. (gcle, 2/3/14)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
GEORGE COOK,
Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 9:12-cv-02921-DCN

ORDER

This matter is before the court on United States Magistrate Judge Bristow
Marchant’s report and recommendation (“R&R”) that the court reverse the Commissioner
of Social Security’s decision to deny claimant George Cook’s application for
supplemental security income (“SSI”). Cook has filed objections to the R&R. For the
reasons set forth below, the court adopts the R&R, reverses the Commissioner’s decision,
and remands the case for further administrative proceedings.
I. BACKGROUND
Unless otherwise noted, the background of this case is taken from the R&R. The
court dispenses with a recitation of Cook’s medical history because it is not germane to
the resolution of this matter.
A. Procedural History
Cook filed an application for disability insurance benefits (“DIB”) and SSI with a
protective filing date of March 19, 2009, alleging that he had been disabled since March
1, 2008. The Social Security Administration (“the Agency”) denied Cook’s DIB
application and he did not appeal that decision. The Agency denied Cook’s SSI

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application both initially and on reconsideration. Cook requested a hearing before an
administrative law judge (“ALJ”) and ALJ Richard L. Vogel presided over a hearing held
on March 4, 2011. In a decision issued on April 28, 2011, the ALJ determined that Cook
was not disabled. The ALJ’s finding became the final decision of the Commissioner
when the Appeals Council denied further review on April 14, 2011.
Cook filed this action for judicial review on October 10, 2012. On February 23,
2012, Cook filed a brief requesting that this court reverse the Commissioner’s decision
and award him benefits. The Commissioner filed a brief contending that the ALJ’s
decision was supported by substantial evidence. On November 4, 2013, the magistrate
judge issued the R&R, recommending that the Commissioner’s decision be affirmed and
Cook’s motion be denied. R&R 9. Cook filed objections to the R&R on November 20,
2013 and the Commissioner replied to Cook’s objections on December 9, 2013. This
matter has been fully briefed and is now ripe for the court’s review.
B. ALJ’s Findings
The Social Security 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.” 42 U.S.C.
§ 423(d)(1)(A); 20 C.F.R. § 404.1505. The Social Security regulations establish a fivestep sequential evaluation process to determine whether a claimant is disabled. See 20
C.F.R. §§ 404.1520, 416.920. Under this process, the ALJ must determine whether the
claimant: (1) is currently engaged in substantial gainful activity; (2) has a severe
impairment; (3) has an impairment which equals an illness contained in 20 C.F.R. § 404,

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Subpt. P, App’x 1, which warrants a finding of disability without considering vocational
factors; (4) if not, whether the claimant has an impairment which prevents him from
performing past relevant work; and (5) if so, whether the claimant is able to perform
other work considering both his or her remaining physical and mental capacities (defined
by his or her RFC) and his or her vocational capabilities (age, education, and past work
experience) to adjust to a new job. See 20 C.F.R. § 404.1520; Hall v. Harris, 658 F.2d
260, 264-65 (4th Cir. 1981). The applicant bears the burden of proof during the first four
steps of the inquiry, while the burden shifts to the Commissioner for the final step. Pass
v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citing Hunter v. Sullivan, 993 F.2d 31, 35
(4th Cir. 1992)).
To determine whether Cook was disabled from March 1, 2008, through the date
of his decision, the ALJ employed the statutorily-required five-step sequential evaluation
process. At step 1, the ALJ found that Cook did not engage in substantial gainful activity
during the period at issue. Tr. 20. At step two, the ALJ found that Cook suffered from
the following severe impairments: arthritis and status post abdominal surgery. Id. At
step three, the ALJ found that Cook’s impairments or combination thereof did not meet
or medically equal one of the impairments listed in the Agency’s listing of impairments.
Tr. 23. Before reaching the fourth step, the ALJ determined that Cook retained the
residual functional capacity to perform work the full range of medium work with several
restrictions. Tr. 24. Specifically, the ALJ found that Cook can lift and carry up to fifty
pounds occasionally and twenty-five pounds frequently, as well as stand, walk, and sit for
six hours each in an eight-hour work day. Id. At the fourth step, the ALJ found that
Cook was capable of performing his past relevant work as a janitor, which did not require

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the performance of work-related activities precluded by the claimant’s residual functional
capacity. Tr. 26. Finally, at the fifth step, the ALJ found that Cook could perform jobs
existing in significant numbers in the national economy and concluded Cook was not
disabled during the period at issue. Id.
II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). This court is not required to review the factual findings and legal conclusions
of the magistrate judge to which the parties have not objected. See id. The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination remains with this court. Mathews v. Weber,
423 U.S. 261, 270-71 (1976).
Judicial review of the Commissioner’s final decision regarding disability benefits
“is limited to determining whether the findings of the [Commissioner] are supported by
substantial evidence and whether the correct law was applied.” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is “more than a mere scintilla of
evidence but may be somewhat less than a preponderance.” Id. (internal citations
omitted). “[I]t 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] if his decision is supported by substantial evidence.” Id.
III. DISCUSSION
In the R&R, the magistrate judge explains that the ALJ erred by failing to address
the medical opinion of Dr. Charles Effiong, Cook’s treating primary care doctor, and that

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the Appeals Council erred by failing to consider new and material evidence, including a
statement written by Dr. Effiong, when it denied Cook’s request for review. Neither
party objects to these findings. Rather, Cook contends that the magistrate judge erred by
recommending that his case be remanded to the Agency for further consideration. Cook
contends that “remand back to the particular ALJ who first heard his case would serve no
purpose” because “ALJ Vogel has a history of failing to abide by remand instructions
from this court.” Cook’s Objections 2. Cook seeks outright reversal of the ALJ’s
decision while the Commissioner counters that remand for further consideration by the
Agency is appropriate.
Federal law allows district courts to remand Social Security appeals in two
different ways. Under the fourth sentence of 42 U.S.C. § 405(g), courts “have power to
enter . . . judgment affirming, modifying, or reversing the decision of the Commissioner
of Social Security, with or without remanding the cause for a rehearing.” Under the sixth
sentence of § 405(g),
The district court does not affirm, modify, or reverse the Secretary's
decision; it does not rule in any way as to the correctness of the
administrative determination. Rather, the court remands because new
evidence has come to light that was not available to the claimant at the
time of the administrative proceeding and that evidence might have
changed the outcome of the prior proceeding.
Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991) (citing 42 U.S.C. § 405(g)).
The Fourth Circuit has explained that outright reversal – without remand for
further consideration – is appropriate under sentence four “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). Reversal with
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instructions that the Agency award benefits is appropriate where a claimant has presented
clear and convincing evidence that he is entitled to benefits. Veeney ex rel. Strother v.
Sullivan, 973 F.3d 326, 333 (4th Cir. 1992) (citing Sahara Coal Co. v. United States
Dep’t of Labor, 946 F.2d 554, 558 (7th Cir. 1991) (“If the outcome of a remand is
foreordained, we need not order one.”)). “The award of benefits is particularly
appropriate where there has been protracted litigation over many years.” Woodley v.
Astrue, No. 11-cv-03202, slip op. at 14 (D.S.C. Mar. 3, 2013).
Cook’s assertions to the contrary, he has not shown clear and convincing evidence
that he is entitled to benefits. Nor has this case been the subject of protracted litigation,
as Cook first sought disability benefits from the Agency in 2009. Rather, as the
magistrate ably explained, remanding this case for further consideration is appropriate
because it will allow the ALJ to consider evidence that has not been previously submitted
for his review, including Dr. Effiong’s attending physician statement. Remand will also
allow the ALJ to weigh Dr. Effiong’s findings against the balance of the evidence and to
explain whether Dr. Effiong’s opinion is entitled to controlling weight under 20 C.F.R. §
404.1527(c)(2). Finally, the fact that ALJ Vogel did not follow the district court’s
remand instructions in Woodley, an unrelated case, does not foreclose the possibility that
he will do so in this case. As a result, the court cannot find that remand would serve no
purpose.
IV. CONCLUSION
For the reasons set forth above, the court ADOPTS the magistrate judge’s report
& recommendation, ECF No. 19, REVERSES the Commissioner’s decision, and
REMANDS under sentence four of 42 U.S.C. § 405(g) for further proceedings.

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AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
February 3, 2014
Charleston, South Carolina

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