Opinion
Civil Action 4:23-cv-03885-MGL-TER
05-08-2024
LEANNA HOPE CROMER, Plaintiff, v. MARTIN O'MALLEY[1], Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a “final decision” of the Commissioner of Social Security, denying Plaintiff's claim for supplemental security income(SSI) and upholding the cessation of prior child disability on March 1, 2021. The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.
I. RELEVANT BACKGROUND
A. Procedural History
The SSA determined Plaintiff's child benefits ceased on March 1, 2021, and Plaintiff contested that determination. The determination was upheld at reconsideration and the Administrative Law Judge(ALJ) held a hearing in October 2022. (Tr. 17). The ALJ issued an unfavorable decision on November 8, 2022, finding that Plaintiff was not disabled within the meaning of the Act as of March 1, 2021 and had not become disabled again since that date. (Tr. 30). Plaintiff filed a request for review of the ALJ's decision, which the Appeals Council denied on June 2023, making the ALJ's decision the Commissioner's final decision. (Tr. 1-3). Plaintiff filed this action in August 2023. (ECF No. 1).
B. Introductory Facts
Plaintiff was born in 2002 and was eighteen years old when benefits were found to have ceased. (Tr. 19). Plaintiff has no past work at the time of the ALJ's finding. At the time of filing in forma pauperis, Plaintiff was working part-time at Walmart. (ECF No. 3). Plaintiff alleged originally as a 10-14 year old that she filed for disability due to ADD/ADHD, asthma, and right hand/foot deformity. (Tr. 62). Pertinent records will be discussed under the relevant issue headings.
C. The ALJ's Decision
In the decision of November 2022, the ALJ made the following findings of fact and conclusions of law (Tr. 17-30):
1. The claimant attained age 18 on July 27, 2020, and was eligible for supplemental security income benefits as a child for the month preceding the month in which she attained age 18. The claimant was notified that her disability was found to have ceased on March 1, 2021, based on a redetermination of disability under the rules for adults who file new applications.
2. Since March 1, 2021, the claimant has had the following severe impairments: congenital deformities of the right hand and right foot, lumbar myofascial pain, narcolepsy, borderline intellectual functioning, and attention deficit/hyperactivity disorder (20 CFR 416.920(c)).
3. Since March 1, 2021, the claimant did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that since March 1, 2021, the claimant has had the residual functional capacity as follows: Over the course of an eight-hour workday, in two-hour increments, she can perform work at the light exertional level as defined in 20 CFR 416.967(b) except: The claimant can never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; handling and fingering can be performed frequently on the nondominant right within the exertional level; occasionally be exposed to hazards associated with unprotected dangerous machinery or unprotected heights; concentrate, persist, and maintain pace sufficient to understand, remember, and carry out simple, routine tasks involving simple work-related decisions, occasional independent judgment skills, and occasional workplace changes; and she is limited to job[s] requiring very little math skills.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on July 28, 2002 and is a younger individual age 18-49 (20 CFR 416.963).
7. The claimant has at least a high school education (20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).
9. Since March 1, 2021, considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969a).
10. The claimant's disability ended on March 1, 2021, and the claimant has not become disabled again since that date (20 CFR 416.987(e) and 416.920(g)).
II. DISCUSSION
Plaintiff argues the ALJ erred in weighing Dr. Smith's opinion. (ECF No. 11 at 12-17). Defendant argues the ALJ's analysis here was sufficient, was in accordance with the applicable law, and Plaintiff has failed to show that the ALJ's decision is not based on substantial evidence.
A. LEGAL FRAMEWORK
1. The Commissioner's Determination-of-Disability Process
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). Section 423(d)(1)(A) 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 at least 12 consecutive months. 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting the “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity (“SGA”); (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [ ] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir.1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).Substantial evidence as a threshold is “not high;” “[u]nder the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
B. ANALYSIS
Opinions: Smith
For applications filed on or after March 27, 2017, such as this action, the regulatory framework for considering and articulating the value of medical opinions has been changed. See 20 C.F.R. § 404.1520c; see also 82 Fed.Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective for claims filed after Mar. 27, 2017). Importantly, the new regulations no longer require any special significance be given to opinions by a treating physician. See 20 C.F.R. § 404.1527 (noting that the treating physician rule only applies to claims filed before March 27, 2017). The ALJ is not required to defer to or give any specific weight to medical opinions. 20 C.F.R. § 404.1520c(a). Instead, the ALJ should consider and articulate in the decision how persuasive each medical opinion is based upon the factors of: (1) supportability; (2) consistency; (3) relationship with the claimant(length, frequency, purpose, extent, and examining); (4) specialization; and (5) other factors that tend to support or contradict a medical opinion. 20 C.F.R. § 404.1520c(b), (c). Supportability and consistency are the most important of the factors for consideration, and the ALJ is required to explain how he considered the supportability and consistency factors in evaluating opinion evidence. 20 C.F.R. § 404.1520c(a), (b)(2). An ALJ is not required to explain how the remaining factors were considered. 20 C.F.R. § 404.1520c(b)(2). In evaluating the supportability of an opinion, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1). In evaluating the consistency of an opinion, “[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2).
Exhibit 20F is the September 2022 opinion of Plaintiff's treating pulmonologist and sleep specialist, Dr. Smith, drafted by Plaintiff's attorney and edited and signed by Dr. Smith:
I am a pulmonologist and sleep medicine specialist who has been treating [Plaintiff] for narcolepsy. In May 2021, Ms. Cromer's multiple sleep latency test (MLST) was positive for severe hypersomnia. This test was done prior to stimulant therapy[medications]. We have not repeated the MLST study because we have already made the diagnosis and so a repeat MLST would be unnecessary at this point. We typically go on the basis of the patient's reported symptoms. However, I believe a repeat study would be unlikely to change her diagnosis. During the testing, she had an early onset of REM sleep during 2 out of 5 naps. She was falling asleep within 3 minutes, which was much faster than we would normally expect someone to fall
asleep (usually around 10 minutes). These results together are consistent with a diagnosis of narcolepsy.
We prescribed her armodafinil which is a stimulant to treat it. Unfortunately, she has only had a partial response to this medication and it has not been effective for her narcolepsy. Furthermore, she had side effects (loss of weight, appetite suppression, and urination issues) which forced her to reduce the medication dosage to the lowest level possible. We have also tried her on Sunosi for narcolepsy. However, this medication has not been effective either. Narcolepsy comes from a deficiency of a chemical called hypocretin in the brain, and unfortunately, no medication that we have available to us today currently replace it. She would fall asleep at unpredictable times throughout the working day. She would be off task more than 15% of a workday due to the attacks of falling asleep. She has been limited since at least May 2021 when I first started seeing her and probably for some time before that. An overnight polysomnogram the night before her MSLT showed adequate sleep and no evidence of sleep apnea or restless leg, alternative diagnosises that cause sleepiness.(Tr. 724).
The ALJ found Dr. Smith's opinions not persuasive:
The September 2022 opinions of Dr. Smith at Exhibit 20F that the claimant “would fall asleep at unpredictable times throughout the working day... she would be off task more than 15% of a workday due to attacks of falling asleep” are not persuasive. Such opinions are speculative and not corroborated by the medical record. The longitudinal evidence of record, including Dr. Smith's reports at Exhibit 19F, indicate the claimant has more than a “partial” response to Armodafinil, which is medication that maintains the claimant's alertness during the day by her own reports. She has repeatedly denied fatigue in treating source records and been objectively in no acute distress, alert, and oriented when seen for care. The claimant even sought to restart Armodafinil use after a six-month follow-up in 2022 when she told Dr. Smith she had quit use four months earlier, which is indicative medication is effective although Dr. Smith states to the contrary. Dr. Smith did not have access to review and consider the medical evidence of record of other sources in giving his opinions.(Tr. 27).
While the ALJ may have flirted with “playing doctor” in stating the treating specialist's opinion of 15% off task was speculative and the regulations do not require a treating specialist to review the entire record “in giving” an opinion, the ALJ did not commit outcome determinative error when reviewing the important regulatory § 404.1520c factors of supportability and consistency in finding Dr. Smith's opinion was not corroborated by the record. The ALJ noted Plaintiff's history with the medication Armodafinil, contemporaneous treatment notes, and Dr. Smith' opinions related to that medication. A focus of Plaintiff's brief is the side effects and efficiency of the first narcolepsy medication prescribed. (ECF No. 11 at 14). The record regarding medication, sleep, fatigue, attention, and concentration, including records cited by the ALJ and/or by Plaintiff, are summarized below chronologically.
ALJs are prohibited generally from substituting their medical opinions for those of medical providers; the Fourth Circuit refers to this as “playing doctor.” See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017); Cohen v. Berryhill, 272 F.Supp.3d 779, 782 (D.S.C. 2017); Howard v. Saul, 408 F.Supp.3d 721, 730 (D.S.C. 2019).
Dr. Smith did not explain the formulation/calculation of 15% off task, just that Plaintiff would fall asleep unpredictably. 15% is 72 minutes of a workday. Plaintiff argues the opinion was not speculative due to diagnostic testing and the explanation of Plaintiff falling asleep unpredictably. (ECF No. 13 at 3).
Plaintiff argues: “This may or may not be true but it is irrelevant; this is because it was the ALJ who had the duty to consider Dr. Smith's opinion as consistent with or not with the remaining evidence....To use Dr. Smith's ignorance of what other doctors, including the state agency consultants, found or opined is disingenuous.” (ECF No. 11 at 16).
In December 2020, Plaintiff reported to SSA she did not have any problems with concentration, completing tasks, memory, or following instructions. (Tr. 245). Plaintiff reported “if I focus, I can for a good bit.” (Tr. 245). Plaintiff did not report any medications. (Tr. 247).
In February 2021, Plaintiff was seen by NP Saleeby for fatigue and falling asleep easily during the day. Plaintiff reported falling asleep standing up at Walmart once. (Tr. 719, 422). Upon exam, Plaintiff was alert with normal behavior. (Tr. 720). Plaintiff was referred to sleep medicine. (Tr. 721).
In February 2021, Plaintiff was examined by agency consultant Dr. Morton with findings of alert, leg bouncing, and able to maintain attention. (Tr. 467). Dr. Morton opined Plaintiff had no degree of limitation in ability to understand, remember or apply information, and only mild degree of limitation in ability to concentrate, persist, or maintain pace. (Tr. 465). Dr. Morton also completed a narrative report. (Tr. 414). Plaintiff reported she was not taking any medications. (Tr. 415). Plaintiff reported she tosses and turns at night but sleeps well in the day. Plaintiff reported she will fall asleep if she gets too still. Plaintiff “said she does tend to be easily tired” and “cries easily.” Plaintiff denied experiencing any significant symptoms of depression. Plaintiff reported some suicidal ideation when she has been away from her boyfriend. (Tr. 415). Plaintiff reported she plays video games during the day and takes a nap. (Tr. 416). Plaintiff reported being concerned that her falling asleep would prevent her from being employed. (Tr. 416). “During the interview, there was some excessive psychomotor activity, but there was no indication of difficulty [with] inattentiveness.” Dr. Morton opined that Plaintiff “would be able to maintain her attention on a simple repetitive task for an extended period of time.” Plaintiff was “able to understand and recall simple work instructions. Because of some hyperactivity/impulsivity she may have mild to moderate impairment in her ability to consistently follow work instructions.” (Tr. 417). Plaintiff had no impairment in pace of work. (Tr. 417). “It is unknown to what extent appropriate treatment for ADHD would reduce her symptoms.” (Tr. 417).
In May 2021, Plaintiff completed a multiple sleep latency test with impression of severe hypersomnia where sleep was achieved quickly when given five different opportunities to nap during the day. (Tr. 707). Plaintiff had complained of excessive daytime sleepiness, drooling at night, morning fatigue, and sleep talking. (Tr. 715). Plaintiff reported three cups of coffee, tea, and cola per day. (Tr. 716). Plaintiff reported always feeling sleepy in the daytime and that she never felt alert for an entire day. (Tr. 716). Plaintiff reported her memory worsened and she had difficulty concentrating lately. (Tr. 716). Dr. Smith recommended consideration of stimulant medication and for Plaintiff to avoid caffeine within four hours of bedtime. (Tr. 707). Plaintiff did not have sleep apnea. (Tr. 708).
In May 2021, Plaintiff was seen by Dr. Smith. Plaintiff complained of daytime sleepiness and morning fatigue. Plaintiff reports she wakes up even more tired and takes several naps during the day. Dr. Smith prescribed 150 mg armodafinil to take during the day. (Tr. 704).
In June 2021, Plaintiff was seen by Dr. Smith. Plaintiff had a very hard time falling asleep after taking the stimulant armodafinil. (Tr. 694). Plaintiff reported the medication helped her stay alert during the day. (Tr. 694). Plaintiff had no day time sleepiness and no fatigue on wakening. (Tr. 695). Plan was to start melatonin and decrease strength of armodafinil. (Tr. 695).
In July 2021, Plaintiff was seen by Dr. Smith. Plaintiff reported after two months on melatonin and armodafinil, they were working very well. Medication was refilled. Plaintiff had no day time sleepiness and no fatigue on wakening. (Tr. 691).
In August 2021, Plaintiff called complaining of medication side effects of armodafinil, but she also asked for a refill. Plaintiff was told she has refills, stimulants do make you less hungry, and to try to eat snacks throughout the day. (Tr. 688).
In August 2021, a physical RFC assessment by consultant Dr. Luberoff noted Plaintiff had a recent diagnosis of narcolepsy, but treatment was controlling symptoms. (Tr. 450). Plaintiff slept between 8-10p.m. til 6a.m. and did not fall asleep during the day since being on medication. Plaintiff also took melatonin to fall asleep at night, and with medication, she sleeps well. (Tr. 452).
Plaintiff had not taken armodafinil since August 2021 and had not informed her doctor of the cessation during the time period from August 2021 until January 2022. (Tr. 685).
In September 2021, Plaintiff was seen by NP Saleeby. Plaintiff examined with alert and normal behavior. (Tr. 500). In December 2021, Plaintiff was seen by Dr. Jhunjhunwala and examined with alert level of consciousness, normal attention, and normal concentration. (Tr. 482). By her own report, Plaintiff was not on medication during these exams.
On January 7, 2022, Plaintiff was seen by NP Saleeby. Plaintiff examined with normal attention, alert, and normal cognition. (Tr. 675, 479). On January 11. 2022, Plaintiff was seen by Dr. Smith, of Lung and Chest Medical Associates. Plaintiff reported she stopped taking armodafinil because she was having “lots of problems with urination and she continued to lose weight.” (Tr. 685). Plaintiff reported she started taking armodafinil in May 2021, and by August 2021, she had urinary retention. Two days after she stopped the medication, her urinary problems ceased. (Tr. 685). Plaintiff complained of morning fatigue. Plaintiff reported taking melatonin at night and she fell asleep while standing. (Tr. 685). Sunosi was prescribed. Plaintiff complained of falling asleep during the day. (Tr. 686). On January 12, 2022, Plaintiff was seen by Dr. Jhunjhunwala and examined with alert level of consciousness, normal attention, and normal concentration. (Tr. 475).
In March 2022, Plaintiff called Dr. Smith, asking if she could take armodafinil as needed, instead of every day; armodafinil was the medication she stopped in August 2021. (Tr. 684).
On June 16, 2022, Plaintiff was seen by NP Saleeby. Plaintiff wanted to discuss possible ADHD medication. Plaintiff reported she had not been on Concerta in a long time and reported she had decreased concentration. (Tr. 676). Upon exam, Plaintiff was alert with normal attention, but she had impaired recent memory. (Tr. 677). Under assessment and plan, Plaintiff was referred to psychology for “concentration deficit.” (Tr. 678). On June 29, 2022, Plaintiff was seen by Dr. Smith. (Tr. 682). Plaintiff wanted a refill of narcolepsy medication and to talk about ADHD medication. Plaintiff was currently using armodafinil as needed and wanted to get back on ADHD medication. Dr. Smith prescribed methylphenidate to help with both narcolepsy and ADHD. History noted Plaintiff drank around six caffeine drinks a day. Plaintiff reported running up and down her basement stairs as exercise. (Tr. 682). Plaintiff had no fatigue upon waking. (Tr. 683). Plaintiff reported weight loss when she took armodafinil. (Tr. 683).
In September 2022, when Plaintiff established care with Dr. Flood, the plan was to set up an ADHD evaluation. “[S]he already sees sleep specialist.” (Tr. 732). Plaintiff examined as alert; the only medication listed was naproxen. (Tr. 730).
The ALJ supported finding the opinions of Dr. Smith as unpersuasive by reviewing the consistency and supportability factors of 20 C.F.R. § 404.1520c(b),(c), considering some of treatment notes discussed above during the relevant period that did not support the severity of the limitations opined and other records were inconsistent with prior reports of daytime sleepiness after being treated for the diagnosis. Under the deferential standard of review applicable here, substantial evidence is not a high threshold. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). The ALJ here performed the analysis under the applicable regulatory scheme and considered the factors most important to determining the persuasiveness of the opinions. The ALJ cited to the record to support this finding and followed the applicable regulatory law.
III. CONCLUSION
This Court is charged with reviewing the case only to determine whether the findings of the Commissioner were based on substantial evidence. Richardson, 402 U.S. at 390. Even where the Plaintiff can produce conflicting evidence which might have resulted in a contrary decision, the Commissioner's findings must be affirmed if substantial evidence supported the decision. Blalock, 483 F.2d at 775. The Commissioner is charged with resolving conflicts in the evidence, and this Court cannot reverse that decision merely because the evidence would permit a different conclusion. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). As previously discussed, despite the Plaintiff's claims, she has failed to show that the Commissioner's decision was not based on substantial evidence. Based upon the foregoing, and pursuant to the power of the Court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in social security actions under sentence four of Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is recommended that the Commissioner's decision be AFFIRMED.