United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge.
Plaintiff filed the Complaint in this action pursuant to 42
U.S.C. § 405(g), seeking judicial review of the final
decision of the Commissioner wherein she was denied
disability benefits. This case was referred to the
undersigned for a report and recommendation pursuant to Local
Rule 73.02(B)(2)(a), (D.S.C.).
applied for Disability Insurance Benefits (DIB) on June 28,
2010, alleging disability as of February 15, 2009, due to
chronic neck and back pain, depression, anxiety, stomach
problems, and headaches. (R.pp. 201-205). Plaintiff's
applications were denied initially and upon reconsideration,
as well as by an Administrative Law Judge (ALJ) after a
hearing. (R.pp. 8-22). The Appeals Council denied
Plaintiff's request for review, following which Plaintiff
filed suit in this United States District Court. Simpkins
v. Astrue, C.A. No. 9:13-2769. The decision of the
Commissioner was thereafter reversed and remanded by this
Court, following which the Appeals Council vacated the
ALJ's decision and sent the case back to a different ALJ
for further proceedings. (R.pp. 902-905). That ALJ then held
a second hearing on July 28, 2015, following which she issued
a decision on October 7, 2015, again finding that Plaintiff
was not disabled and denying Plaintiff's claims. (R.pp.
794-827, 828-853). The Appeals Council denied Plaintiff's
request for review, making the ALJ's decision the final
decision of the Commissioner. (R.pp. 280-283).
then filed this action asserting that there was not
substantial evidence to support the ALJ's decision, and
that the decision should be reversed and remanded for further
consideration. The Commissioner contends that the decision to
deny benefits is supported by substantial evidence, and that
Plaintiff was properly found not to be disabled.
42 U.S.C. § 405(g), the Court's scope of review is
limited to (1) whether the Commissioner's decision is
supported by substantial evidence, and (2) whether the
ultimate conclusions reached by the Commissioner are legally
correct under controlling law. Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990); Richardson v.
Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers
v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If
the record contains substantial evidence to support the
Commissioner's decision, it is the court's duty to
affirm the decision. Substantial evidence has been defined
evidence which a reasoning mind would accept as sufficient to
support a particular conclusion. It consists of more than a
mere scintilla of evidence but may be somewhat less than a
preponderance. If there is evidence to justify refusal to
direct a verdict were the case before a jury, then there is
“substantial evidence.” [emphasis added].
Hays, 907 F.2d at 1456 (citing Laws v.
Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see
also, Hepp v. Astrue, 511 F.3d 798, 806
(8th cir. 2008)[Noting that the substantial
evidence standard is even “less demanding than the
preponderance of the evidence standard”].
Court lacks the authority to substitute its own judgment for
that of the Commissioner. Laws, 368 F.2d at 642.
"[T]he language of [405(g)] precludes a de novo judicial
proceeding and requires that the court 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).
review of the record shows that Plaintiff, who was fifty-one
years old when she alleges she became disabled, has a high
school education and past relevant work experience as a punch
press operator and production manager. (R.pp. 20, 33-34, 57).
In order to be considered "disabled" within the
meaning of the Social Security Act, Plaintiff must show that
she has an impairment or combination of impairments which
prevent her from engaging in all substantial gainful activity
for which she is qualified by her age, education, experience
and functional capacity, and which has lasted or could
reasonably be expected to last for at least twelve (12)
review of the evidence and testimony in this case, the ALJ
determined that, although Plaintiff did suffer through her
last day insured from the “severe”
impairments of degenerative disc disease of the
cervical and lumbar spine, morbid obesity, right carpal
tunnel syndrome (CTS), an affective disorder, an anxiety
disorder, and possible borderline intellectual functioning,
she nevertheless retained the residual functional capacity
(RFC) to perform light work, with the following additional
limitations: cannot perform any overhead reaching; could not
climb ladders, ropes, or scaffolds; only occasionally climb
ramps and stairs, balance, stoop, crouch, kneel, and crawl;
frequently handle and finger with her dominant right hand;
follow simple instructions and perform simple, routine tasks;
no high production work, defined as no high volume assembly
line work; could have public contact 10% of the workday or
less, but could do no counter sales or work serving the
public; and could occasionally make job related decisions and
tolerate work place changes. (R.pp. 799, 803). The ALJ
further determined that, although the limitations caused by
Plaintiff's impairments precluded her from performing her
past relevant work, she could perform other representative
occupations with these limitations, such as an inspector
(D.O.T. Number 741.687-010) and hand packer (D.O.T. Number
753.687-038), and was therefore not entitled to DIB. (R.p.
asserts that in reaching this decision, the ALJ erred by
relying on VE testimony that was in response to an improper
hypothetical, and by rejecting and improperly evaluating the
opinion evidence from Plaintiff's treating physician, Dr.
Todd Gallman. After careful review and consideration of the
record and arguments from the parties, the undersigned is
constrained to agree with the Plaintiff that the ALJ's
hypothetical to the VE was flawed, and that the decision must
therefore be reversed and remanded for further consideration
of Plaintiff's claims.
the medical evidence regarding Plaintiff's condition
deals with her physical problems, although Dr. Gallman did
also note and treat Plaintiff for symptoms of depression.
(R.pp. 590, 596, 604-605, 774-776, 1016). See also
(R.pp. 1018-1039). On November 3, 2010, Michael J. Grant,
opined that Plaintiff suffered from “Depression -
severe - NOS”, “Anxiety-moderate to severe -
NOS”, “Psychosocial stressors - health,
occupational, financial”, and had a current
GAFof 65. Dr. Grant opined that on testing,
Plaintiff “tended to struggle with items requiring
concentration.” (R.p. 675). Dr. Grant also opined that
“[s]he had considerable difficulty maintaining
attention and concentration for extended periods.”
(R.p. 675). After review of this medical evidence and
consideration of the subjective testimony presented at the
hearing, the ALJ found that Plaintiff had severe mental
impairments (affective disorder, anxiety disorder, and
borderline intellectual functioning) which resulted in,
inter alia, moderate difficulties with regard to
Plaintiff's ability to maintain concentration,
persistence, or pace. (R.pp. 799, 802). However, although the
ALJ found that Plaintiff had moderate restrictions with
respect to concentration, persistence, or pace, she failed to
then properly account for this restriction in her RFC
the ALJ limited Plaintiff's RFC to (among other
limitations) the performance of simple instructions and
simple, routine tasks; no high production work, defined as no
high volume assembly line work; she could have public contact
10% of the workday or less, but could do no counter sales, or
work serving the public; and could occasionally make job
related decisions and tolerate work place changes. (R.pp.
799, 803). Restricting a claimant like the Plaintiff to
simple, routine work in order to account for mental
impairments, to include a moderate restriction with respect
to concentration, persistence or pace, was an RFC formula
that had generally found support in the case law prior to
2015. Cf. Wood v. Barnhart, No. 05-432,
2006 WL 2583097 at * 11 (D.Del. Sept. 7, 2006) [Finding that
by restricting plaintiff to jobs with simple instructions,
the ALJ adequately accounted for plaintiff's moderate
limitation in maintaining concentration, persistence or
pace]; McDonald v. Astrue, 293 F. App'x 941,
946-47 (3d Cir. 2008) [noting that the ALJ properly accounted
for his finding that the claimant had moderate limitations in
concentration by limiting him to simple, routine tasks].
However, in Mascio v. Colvin, 780 F.3d 632 (4th Cir.
2015), the Fourth Circuit held ...