Opinion
Civil Action No. 6:19-1146-RMG-KFM
04-15-2020
Clarence Williams, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B). The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. §§ 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying his claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits on July 21, 2015. In both applications, the plaintiff alleged that he became unable to work on October 18, 2012. Both applications were denied initially and on reconsideration by the Social Security Administration. On March 14, 2016, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff, his attorney, and J. Adger Brown, Jr., an impartial vocational expert, appeared in a video hearing on December 4, 2017, considered the case de novo, and on February 27, 2018, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 15-21). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on March 11, 2019 (Tr. 1-5). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2014.
(2) The claimant has not engaged in substantial gainful activity since October 18, 2012, the alleged onset date (20 C.F.R §§ 404.1571 et seq., 416.971 et seq.).
(3) The claimant has the following severe impairments: knee disorder, lumbar arthropathy, and high blood pressure (20 C.F.R. §§ 404.1520(c), 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 416.920(d), 416.925, 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except he cannot climb ladders, ropes, or scaffolds; he can frequently stoop, occasionally crouch, and never kneel or crawl; and he should avoid moderate exposure to unprotected heights.
(6) The claimant is capable of performing past relevant work as a short order cook and assembler. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. §§ 404.1565, 416.965).
(7) The claimant has not been under a disability, as defined in the Social Security Act, from October 18, 2012, through the date of this decision (20 C.F.R. §§ 404.1520(f), 416.920(f)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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." 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 50 years old on his alleged disability onset date (October 18, 2012) and 55 years old at the time of the ALJ's decision (February 27, 2018). He completed high school and has past relevant work as a concrete finisher, short order cook, stocker, and assembler (Tr. 21, 194).
On January 21, 2015, Trina D. Boyce, A.N.P., evaluated the plaintiff for multiple complaints including rectal bleeding, weakness, and back pain. Ms. Boyce prescribed hydrochlorothiazide, losartan, and amiodipine besylate (Tr. 284-90).
On February 25, 2015, Ms. Boyce evaluated the plaintiff for bilateral knee and low back pain. He exhibited joint tenderness in the right knee, but no redness and swelling. He had normal range of motion. The plaintiff rated his pain at ten out of ten. He also reported being out of blood pressure medications and having knots on the right side of his body. Ms. Boyce indicated that they would try him on naproxen and Sterapred. She ordered x-rays and scans (Tr. 278-83).
On March 11, 2015, the plaintiff had a right axilla sonogram, which showed a solid mass in the right axilla and just above the right knee (Tr. 265).
On June 23, 2015, Ms. Boyce evaluated the plaintiff for knee and back pain. He reported having knee pain for several months and back pain for several years. Ms. Boyce discussed his soft tissue knots. The plaintiff stated that he did not want to have them further evaluated for fear they would develop into cancer. Ms. Boyce ordered back and knee x-rays. Lumbar x-rays showed mild lower lumbar facet arthropathy with no acute findings. Knee x-rays showed mild two compartment osteoarthritis with no acute findings. The plaintiff's hypertension was "much improved on medication" (Tr. 266, 291-97).
On August 11, 2015, Belinda Pickett, N.P., evaluated the plaintiff for followup of hypertension. He reported being out of blood pressure medication for a couple of weeks due to being unemployed. His hypertension was assessed as "deteriorated," though he denied cardiovascular symptoms such as fatigue, lightheadedness, shortness of breath, or chest pain. He also reported severe right knee pain. On examination, he had full range of motion in all joints with no edema and normal sensation and muscle strength. Ms. Pickett refilled his medications (Tr. 310-18).
On November 12, 2015, Mary Lang, M.D., a non-examining consultant on contract to the Administration, completed a physical residual functional capacity ("RFC") assessment. Dr. Lang found that the plaintiff was capable of performing medium work with postural limitations (Tr. 58-60).
On February 17, 2016, Pravin Patel, M.D., performed a consultative examination of the plaintiff at the Commissioner 's request. Dr. Patel reviewed seven pages of records from CareSouth and elicited the plaintiff's histories. The plaintiff had a right axilla mass and right knee mass, but he declined biopsies. X-ray of his knees showed two compartment osteoarthritis, and a lumbar x-ray showed a mild lower lumbar facet arthropathy. The plaintiff was treated for hypertension, knee and lower back pain, and the soft tissue masses. He reported that he could not work due to back and right knee pain. He reported that his back pain started about four years ago. He indicated that he suffered no trauma, and he described his lower back pain as a constant sharp pain, which was worse on bending, sitting, lifting, and standing and better with resting. The plaintiff had not seen any orthopaedic doctor or other specialist, and he had not been treated in the emergency room or admitted in the hospital for back pain. He reported that his back pain radiated to his right leg. His right knee pain had been present for the last seven years. A knee x-ray showed two compartment osteoarthritis and a right knee mass measuring 5.4 x 2.4 cm in March 2015, which was not treated due to the plaintiff's inability to afford further workup. The plaintiff did not take any medication and had not seen an orthopaedic surgeon for his right knee pain, but he did have aspirations of his right knee joint performed by his family physician about two years prior. He had high blood pressure for the last ten years and had stopped taking his blood pressure medication two months prior because he could not afford it. He denied chest pain, shortness of breath, or dizziness. He complained of headache on the left temporal area, which lasted for about three hours every other day. The plaintiff was independent in activities of daily living, but he did not do any household chores or go to the grocery store. He reported resting and watching television during the day. He was appropriately oriented and in no acute distress.
Upon examination, the plaintiff's blood pressure was 179/110, and he weighed 273 pounds and was six feet tall, making his body mass index ("BMI") 37. He had full range of motion without any swelling, deformity, instability, or flexor contractures. The plaintiff complained of lumbar pain. His lumbar flexion was 70 degrees, extension and lateral flexion was 15 degrees. His right axilla area showed a large soft tissue mass that was non-tender. His right knee was more tender and stiff compared to the left. Range of motion in his right knee was from 0 to 120 degrees and 0 to 130 degrees in the left. There was no instability of the knee joints. Straight leg raising was negative, supine was 45 degrees, and sitting was 90 degrees bilaterally. The plaintiff complained of right knee pain on right straight leg raising. He sat up from a supine position and stood up from a sitting position slowly. He got on and off the examination table unassisted. His gait was normal, and he did not use an assistive device. He squatted up to 70%, performed the tandem walk slowly, and walked on his heels okay, but he walked on the toes slowly. Mentally, the plaintiff was clear, coherent, and he was able to handle his own funds if provided. Dr. Patel diagnosed hypertension; osteoarthritis of both knees, right worse than the left; lower back pain; right axilla lipoma; possible soft tissue fibromas of the right lateral chest wall and above the knee area; and uncontrolled hypertension due to noncompliance (Tr. 320-26).
On March 3, 2016, Stephen Burge, M.D., a non-examining consultant on contract to the Administration, completed a physical RFC assessment. Dr. Burge found that the plaintiff was capable of performing medium work with postural limitations (Tr. 81-83).
On July 26, 2016, Mark Sohner, M.D., evaluated the plaintiff for severe back and right knee pain. He also complained of abdominal bloating and heartburn. He reported being on a combination of two medications for knee pain with "fairly good control" until he ran out about one month prior to the appointment. He also reported increased symptoms of back pain after running out of medication. He reported an episode of sharp chest pain a few days prior to the appointment, but there was no recurrence since then. He ran out of his hypertension medication about a month prior to the examination. The plaintiff had mild palpation tenderness at his lower lumbosacral spine. He had bilateral knee crepitus but no joint effusions. His range of motion was preserved. He had moderate discomfort at the extremes of range of motion. Dr. Sohner prescribed Robaxin, naproxen, hydrochlorothiazide, losartan, amlodipine, and esomeprazole (Tr. 349-58).
On January 18, 2017, Dr. Sohner evaluated the plaintiff for followup of an exacerbation of back and leg pain. He rated his pain at ten out of ten, and he described it as aching. The plaintiff had responded fairly well to a combination of Robaxin and naproxen. He had run out of medication, which caused increased symptoms. The plaintiff also reported having difficulty sleeping due to pain. He had palpation tenderness at the base of his spine and at the bilateral sacroiliac joints. There was no sciatic notch tenderness. There was localized palpation tenderness over the greater trochanter of the right hip, without evident joint effusion. He had normal, full range of motion of all joints. Dr. Sohner started the plaintiff on chlorzoxazone and Mobic (Tr. 339-48).
On August 30, 2017, Dr. Sohner reevaluated the plaintiff. His blood pressure was under excellent control. He admitted to not checking his blood sugar at home, but he was taking metformin. He remained morbidly overweight and continued to have chronic back pain and advanced arthritis in his knees bilaterally. He reported right hip pain as well. The plaintiff indicated that his prior pain medications had provided only minimal relief, and he admitted to being out of them for quite a while, only taking a single Aleve tablet daily. Dr. Sohner discussed referrals to an orthopaedic doctor and physical therapy, but he noted that the plaintiff had no insurance and was awaiting a disability decision. The plaintiff had diffuse palpation tenderness at the base of his lumbosacral spine. He also had mild to moderate paraspinal muscle spasm and tenderness, as well as moderate crepitus in his bilateral knees. He had normal strength and sensation. Dr. Sohner refilled the plaintiff's medications (Tr. 328-38).
At the hearing on December 4, 2017, the vocational expert identified the plaintiff's past relevant work as a concrete finisher, Dictionary of Occupational Titles ("DOT") No. 844.364-010, specific vocational preference ("SVP") 7, medium; short order cook, DOT No. 313.374-014, SVP 3, light; stocker, DOT No. 299.367-014, SVP 4, heavy; and assembler, DOT No. 339.687-030, SVP 2, light (Tr. 41).
The ALJ asked the vocational expert the following hypothetical:
Assuming a person of the claimant's age, education and work experience able to do medium work, no climbing ladders, ropes or scaffolds, frequent climbing ramps or stairs, frequent stooping, occasional crouching, kneeling and crawling, avoid even moderate exposure to unprotected heights. Would a person with those limits be able to do claimant's past work?(Tr. 42). The vocational expert indicated that the plaintiff's past work as a short order cook and an assembler would be available.
Next, the ALJ asked:
Assuming a person of the claimant's age, education and work experience able to do light work. Again, no climbing ladders, ropes or scaffolds, frequent climbing ramps or stairs, frequent stooping, occasional crouching, kneeling and crawling. Actually, hang on a minute. Let's try - what about no kneeling or crawling. Again, avoiding moderate exposure to unprotected heights. Would a person with those limits be able to do claimant's past work?(Tr. 42). The vocational expert indicated that the short order cook and assembler jobs would still be available.
The ALJ asked about a person being off task for two hours or more a day or if a person were to miss more than two days of work a month on a regular basis. The vocational expert responded that both of these limitations would preclude all work. The vocational expert indicated that there would be no transferable skills from the plaintiff's short order cook or assembler jobs (Tr. 43).
ANALYSIS
The plaintiff argues that the ALJ erred by (1) failing to properly evaluate the demands of his past relevant work and (2) failing to appropriately consider the reasons for his failure to obtain additional treatment (doc. 12 at 10-13).
Past Relevant Work
As set out above, at the administrative hearing, the vocational expert identified the plaintiff's past relevant work as a concrete finisher, DOT No. 844.364-010, SVP 7, medium; short order cook, DOT No. 313.374-014, SVP 3, light; stocker, DOT No. 299.367-014, SVP 4, heavy; and assembler, DOT No. 339.687-030, SVP 2, light (Tr. 41). In response to the ALJ's hypothetical describing a hypothetical individual who was capable of performing work corresponding with the RFC finding, the vocational expert testified that "the short order cook and the assembler would still be within the limits" (Tr. 42). At step four of the sequential evaluation process, the ALJ found as follows:
The undersigned finds the claimant can perform past relevant work as a short order cook and assembler. In comparing the claimant's [RFC] with the physical and mental demands of this work, the undersigned finds that the claimant is able to perform it as actually and generally performed. In response to a hypothetical question at the hearing that reflected the claimant's [RFC], the vocational expert testified that the individual would be able to complete past work. Based on the testimony of the vocational expert, the undersigned concludes that the claimant can perform past relevant work as was actually performed and is generally performed.(Tr. 21) (emphasis added).
The plaintiff argues that remand is required because substantial evidence does not support this finding. "Past relevant work" is defined by the regulations as "work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it." 20 C.F.R. §§ 404.1560(b)91), 416.960(b)(1).The ALJ must consider whether a claimant has the RFC to "meet the physical and mental demands of jobs a claimant has performed in the past (either the specific job a claimant performed or the same kind of work as it is customarily performed throughout the economy)," and, if the claimant can return to his past relevant work, he may be found to be "not disabled." SSR 82-62, 1982 WL 31386, at *3. Social Security Ruling ("SSR") 82-61 sets out three tests an ALJ may use in determining whether an individual can do past relevant work: (1) whether the claimant can perform a past relevant job "based on a broad generic, occupational classification of that job, e.g., 'delivery job,' 'packaging job,' etc. Finding that a claimant has the capacity to do past relevant work on (this) basis is likely to be fallacious and unsupportable."; (2) whether the claimant can perform the functional demands and job duties "peculiar to an individual job as he or she actually performed it;" or (3) whether the claimant has the capacity to perform the job as ordinarily required by employers, often utilizing the DOT. 1982 WL 31387, at *1-2.
Further, SSR 82-62 provides:
The claimant is the primary source for vocational documentation, and statements by the claimant regarding past work are generally sufficient for determining the skill level; exertional demands and nonexertional demands of such work. Determination of the claimant's ability to do PRW requires a careful appraisal of (1) the individual's statements as to which past work requirements can no longer be met and the reason(s) for his or her inability to meet those requirements; (2) medical evidence establishing how the impairment limits ability to meet the physical and mental requirements of the work; and (3) in some cases, supplementary or corroborative information from other sources such as employers, the Dictionary of Occupational Titles, etc., on the requirements of the work as generally performed in the economy.1982 WL 31386, at *3. SSR 82-62 also requires the following when the decisionmaker determines that a claimant can meet the physical and mental demands of past relevant work:
The rationale for a disability decision must be written so that a clear picture of the case can be obtained. The rationale must follow an orderly pattern and show clearly how specific evidence leads to a conclusion.
* * *
In finding that an individual has the capacity to perform a past relevant job, the determination or decision must contain among the findings the following specific findings of fact:
1. A finding of fact as to the individual's RFC.
2. A finding of fact as to the physical and mental demands of the past job/occupation.Id. at *3-4.
3. A finding of fact that the individual's RFC would permit a return to his or her past job or occupation.
With regard to the job classified as "short order cook," the only evidence in the record as to the physical demands as the plaintiff actually performed this job is from the plaintiff's work history report (Form SSA-3369-BK) (Tr. 202-10). In that form, the plaintiff indicated the following exertional requirements of his job as "head cook" at Waffle House: walking for eight hours per day; standing for eight hours per day; stooping, crouching, handling, and reaching for eight hours per day; kneeling for five hours per day; crawling for four hours per day, and sitting for 30 minutes per day; lifting food items and boxes all day, 50 pounds or more frequently with 100 pounds being the heaviest weight lifted; and supervising four people for eight hours per day (Tr. 205; see also Tr. 66).
With regard to the job classified as "assembler," the plaintiff indicated in his work history report that he performed the job of "assembly line" at VB Williams from 2002-2004, but the page indicating the duties and exertional requirements of that job is blank (Tr. 202). However, in the disability determination explanation at the initial level, it was noted that the plaintiff provided a work history report indicating that, in this job, he worked on an assembly line from 2002-2004 in which he assembled headboards for beds. The plaintiff stated that he worked eight hours per day; he "used drill guns, hammers and staple guns while working"; he walked, stood, bent, and stooped about 7½ hours a day, and the heaviest weight he lifted was about 90 pounds, when he lifted an assembled headboard off of the line and placed it into a truck to be delivered (Tr. 65).
The plaintiff identified six jobs that he had in the 15 years prior to becoming unable to work, and he completed descriptions of the duties and exertional requirements of the other jobs (Tr. 202-10).
Neither the vocational expert nor the plaintiff provided any testimony at the hearing with additional information about the plaintiff's past relevant work as he actually performed these jobs. Accordingly, the only evidence of record is that the plaintiff actually performed this past relevant work at a more strenuous exertional level than the RFC assessed by the ALJ (Tr. 18) (finding the plaintiff can perform light work with additional postural and environmental limitations). Thus, there is no evidence to support the ALJ's finding that the plaintiff "can perform past relevant work as was actually performed" (Tr. 21).
The Commissioner argues that because the ALJ also found that the plaintiff could perform his past relevant work as generally performed, the plaintiff's argument for remand should be dismissed (doc. 13 at 7-8). The undersigned agrees that such an error may in some instances be considered harmless. See Gossett v. Berryhill, C.A. No. 5:17-78-RBH-KDW (D.S.C. Feb. 23, 2018) ("The undersigned agrees with Plaintiff that the ALJ erred in determining Plaintiff could perform the job as he actually performed it, however, because the ALJ determined Plaintiff could perform the job as generally performed any error is considered harmless."), R&R adopted by C.A. No. 5:17-78-AMQ, 2018 WL 4113313 (D.S.C. Aug. 29, 2018). Here, however, for the following reasons, the undersigned recommends that the case be remanded for further consideration.
First, as pointed out by the plaintiff (doc. 12 at 12), if he was found unable to perform his past relevant work, a finding of disability would be directed by the Medical-Vocational Guidelines Rule 202.06 when he turned 55 years old, which occurred in July 2017, several months before the ALJ's decision in this case. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.06.
Further, as noted above, the DOT classifications used by the vocational expert and accepted by the ALJ for these two jobs were short order cook, DOT no. 313.374-014, and assembler, DOT No. 339.687-030, both of which are at the light exertional level (Tr. 41). As set out herein, the demands of these jobs as classified by the vocational expert vary greatly from the evidence of record regarding the plaintiff's description of the mental and physical demands of his past relevant work. Further, at the initial and reconsideration levels, the plaintiff's past relevant work was classified as fast food cook, DOT No. 313.374-010, and metal-bed assembler, DOT No. 706.684-082, both of which are at the medium exertional level (Tr. 60, 83), which exceeds the plaintiff's RFC (see Tr. 61, 84). While these determinations are not binding on the ALJ, it is illustrative of how pivotal this issue is to the plaintiff's case.
In DeLoatche v. Heckler, the Court of Appeals for the Fourth Circuit acknowledged that an ALJ "may rely on the general job categories of the [DOT] as presumptively applicable to a claimant's prior work." 715 F.2d 148, 151 (4th Cir.1983). The court noted, however, that "[t]he same label . . . may be used in a variety of ways. . . . The claimant may overcome the presumption that the Secretary's generalization applies by demonstrating that her duties were not those envisaged by the framers of the Secretary's category." Id. In DeLoatche, the Fourth Circuit remanded the case for additional evidence on "the proper characterization of [the claimant's] relevant prior work," noting that it might be possible for the Secretary to demonstrate that it was only the claimant's specific prior job, and not her occupation, that was not properly termed sedentary; however, on the record before the court, it was not possible to make such a determination. Id.
Here, the ALJ did not mention the plaintiff's own description of his past relevant work. Further, the ALJ failed to discuss the mental and physical demands of the plaintiff's past relevant work, other than a generalized reliance on the DOT and the testimony of the vocational expert. Accordingly, it is not possible for the court to determine whether the decision that the plaintiff can perform his past relevant work is supported by substantial evidence. See Wilson v. Colvin, C.A. No. 5:13-1998-RBH, 2015 WL 1268033, at *7-8 (D.S.C. Mar. 19, 2015) (remanding for further consideration at step four). As such, the case should be remanded for further findings regarding the plaintiff's past relevant work, including the physical and mental demands of the past relevant work with consideration of the plaintiff's description of the work. See Turrentine v. Colvin, C.A. No. 1:15CV00256, 2016 WL 225699, at *5-6 (M.D.N.C. Jan. 19, 2016) (finding that because, among other reasons, the plaintiff's past relevant work as she described it was at the light exertional level, including walking up to six hours per day and seldom sitting at a computer, whereas the DOT occupation used by the vocational expert and the ALJ qualified as sedentary, substantial evidence failed to support the ALJ's use of that DOT classification in analyzing the plaintiff's past relevant work).
Remaining Allegations of Error
In light of the court's recommendation that this matter be remanded for further consideration, the court need not address the plaintiff's remaining issues, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3rd Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Moreover, if necessary, the plaintiff may present his remaining arguments concerning the ALJ's alleged errors on remand.
CONCLUSION AND RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge April 15, 2020
Greenville, South Carolina The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).