United States District Court, District of South Carolina
OPINION AND ORDER
Bruce Howe Hendricks, United States District Judge
The plaintiff, Lois Bolen Steen (“the plaintiff”), brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security (“Commissioner”), denying her claims for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rules 73.02(B)(2)(a) and 83.VII.02, D.S.C., this matter was referred to United States Magistrate Judge Thomas E. Rogers, III, for pretrial handling.
On January 16, 2015, the magistrate judge issued a Report and Recommendation in which he determined that he could not determine that the Commissioner’s decision was based on substantial evidence. (ECF No. 26 at 22.) Accordingly, the magistrate judge recommended reversing and remanding the Commissioner’s decision. Id. The Commissioner filed Objections, on February 2, 2015 (ECF No. 28), and the plaintiff filed a reply (ECF No. 30). For the reasons stated below, the Court cannot adopt the Report and Recommendation and affirms the decision of the Commissioner.
FACTUAL AND PROCEDURAL BACKGROUND
The Report and Recommendation sets forth in detail the relevant facts and standards of law on this matter, and the Court incorporates them and summarizes below in relevant part. The plaintiff filed an application for SSI alleging a disability onset date of January 1, 2006. (R. at 44.) The plaintiff’s application was denied initially and on reconsideration. Id. A hearing was held before an Administrative Law Judge (“ALJ”) who issued an unfavorable decision on August 17, 2012, finding that the plaintiff was not disabled within the meaning of the Act. (R. at 44-52.) The Appeals Council denied the plaintiff’s request for review (R. at 1-3), making the ALJ’s decision the final decision of the Commissioner. The plaintiff subsequently filed an action in this Court on November 6, 2013. (ECF No. 1.)
REPORT AND RECOMMENDATION
The magistrate judge recommends reversing and remanding the ALJ’s decision. (ECF No. 26 at 22.) 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 (1976). The Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the magistrate judge, or recommit the matter to her with instructions. 28 U.S.C. § 636(b)(1). “However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. While the level of scrutiny entailed by the Court’s review of the Report thus depends on whether or not objections have been filed, in either case the Court is free, after review, to accept, reject, or modify any of the magistrate judge’s findings or recommendations.” Wallace v. Housing Auth. of the City of Columbia, 791 F.Supp. 137, 138 (D.S.C. 1992) (internal citations omitted).
STANDARD OF REVIEW
The role of the federal judiciary in the administrative scheme established by the Social Security Act is a limited one. Under 42 U.S.C. § 405(g), the court may only review whether the Commissioner’s decision is supported by substantial evidence and whether the correct law was applied. See 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). “Substantial evidence has been defined innumerable times as more than a scintilla, but less than preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964); see, e.g., Daniel v. Gardner, 404 F.2d 889 (4th Cir. 1968); Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966); Tyler v. Weinberger, 409 F.Supp. 776 (E.D. Va. 1976). In order for a reviewing court to determine whether the Commissioner based a decision on substantial evidence, “the decision must include the reasons for the determination . . . .” Green v. Chater, 64 F.3d 657, 1995 WL 478032, *2 (4th Cir.1995) (citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir.1986)). The statutorily mandated standard precludes a de novo review of the factual circumstances that substitutes the Court’s findings for those of the Commissioner. See, e.g., Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968). Accordingly, “the court [must] uphold the [Commissioner’s] decision even should the court disagree with such decision as long as it is supported by ‘substantial evidence.’” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). As noted by Judge Sobeloff in Flack v. Cohen, 413 F.2d 278 (4th Cir. 1969), “[f]rom this it does not follow, however, that the findings of the administrative agency are to be mechanically accepted. The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative action.” Id. at 279. “[T]he courts must not abdicate their responsibility to give careful scrutiny to the whole record to assure that there is a sound foundation for the [Commissioner’s] findings, and that his conclusion is rational.” Vitek, 438 F.2d at 1157-58.
The defendant filed objections to the Report and Recommendation (“Objections”) on February 2, 2015 (ECF No. 28). The magistrate judges recitation of the applicable law is thorough and accurate and the undersigned would not repeat it here.
As the plaintiff notes, the defendant has only objected to the magistrate judge’s determination as to the ALJ’s consideration of the plaintiff’s borderline age situation at Step Five of the sequential evaluation process. (ECF No. 28 at 1.) But, the objection is effective. The magistrate judge found that “[g]iven the borderline age situation and the disability finding when using the older age category, the ALJ should have decided whether it was more appropriate to use the higher age category or the claimant’s chronological age.” (ECF No. 26 at 20-21.) The ALJ indicated the plaintiff’s age and applicable regulations but did not make an express discussion as to which age category the plaintiff belongs. (R. at 51.) The defendant contends the legal and factual recitation is enough. The plaintiff complains that a more express evaluation was required.
The magistrate judge made a thorough and fair review of the diversity of opinions among the circuits regarding what is required of an ALJ at Step Five in borderline age situations. The conclusion is well-reasoned and in harmony with the large majority of disctrict court opinions within the Fourth Circuit, including this one. (See R&R at 19-20.) The undersigned simply agrees with it. Explanation is required on whether or not a claimant should be considered in a higher age category, beyond simply a citation to applicable regulations. It is essential to effective review. See Phillips v. Astrue, 671 F.3d 699, 707 (8th Cir.2012).
Even still, the defendant contends that the error is harmless. The Commissioner argues that both the ALJ’s consultation of a vocational expert to prove transferability of work skills and a lack of vocational adversities show that the ALJ properly applied the Medical Vocational Guidelines (“Grid Rules”). The defendant is correct. Even if the plaintiff qualified for the higher age category, the ALJ found in the alternative that her work skills were transferable. (R. at 51-52.) The higher age category Grid Rule requires non-transferability (Rule 202.06 - individual of advanced age with skilled or ...