United States District Court, D. South Carolina, Aiken Division
ANTHONY H. HIX, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
AFFIRMING DEFENDANT=S FINAL DECISION DENYING
GEIGER LEWIS UNITED STATES DISTRICT JUDGE.
a Social Security appeal in which Plaintiff seeks judicial
review of the final decision of Defendant denying his claims
for Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI). The parties are represented by
excellent counsel. The matter is before the Court for review
of the Report and Recommendation (Report) of the United
States Magistrate Judge suggesting to the Court
Defendant's final decision denying Plaintiff's claims
for DIB and SSI be affirmed. The Report was made in
accordance with 28 U.S.C. § 636 and Local Civil Rule
73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those portions of the Report 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 with instructions. 28 U.S.C. §
Magistrate Judge filed the Report on January 4, 2017,
Plaintiff filed his objections on February 2, 2017, and
Defendant filed her reply on February 15, 2017. The Court has
carefully reviewed Plaintiff's objections, but holds them
to be without merit. Therefore, it will enter judgment
filed his applications for DIB and SSI on August 14, 2012,
asserting his disability commenced on April 1, 2010.
Plaintiff's applications were denied initially and upon
reconsideration. Plaintiff requested a hearing before an
Administrative Law Judge (ALJ), which the ALJ conducted on
August 7, 2014. Then, on October 31, 2014, the ALJ issued a
decision finding Plaintiff was not disabled under the Act.
Subsequently, the Appeals Council denied Plaintiff's
request for review of the ALJ's decision. Accordingly,
the ALJ's decision became Defendant's final decision
for purposes of judicial review. Thereafter, Plaintiff filed
suit in this Court seeking judicial review of Defendant's
final decision denying his claims.
Social Security Administration has established a five-step
sequential evaluation process for determining whether a
person is disabled. 20 C.F.R. '' 404.1520(a),
416.920(a). The five steps are: (1) whether the claimant is
currently engaging in substantial gainful activity; (2)
whether the claimant has a medically determinable severe
impairment(s); (3) whether such impairment(s) meets or equals
an impairment set forth in the Listings; (4) whether the
impairment(s) prevents the claimant from returning to his
past relevant work; and, if so, (5) whether the claimant is
able to perform other work as it exists in the national
economy. 20 C.F.R. '' 404.1520(a)(4)(I)-(v),
28 U.S.C. § 636(b)(1), a district court is required to
conduct a de novo review of those portions of the Magistrate
Judge's Report to which a specific objection has been
made. The Court need not conduct a de novo review, however,
''when a party makes general and conclusory
objections that do not direct the court to a specific error
in the [Magistrate Judge's] proposed findings and
recommendations.'' Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982); see Fed. R. Civ. P.
72(b). Thus, the Court will address each specific objection
to the Report in turn. As provided above, however, the Court
need not-and will not-address any of Plaintiff's
arguments that fail to point the Court to alleged specific
errors the Magistrate Judge made in the Report.
Plaintiff's duty to both produce evidence and prove he is
disabled under the Act. See Pass v. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995). And, it is the duty of the ALJ,
not this Court, to make findings of fact and to resolve
conflicts in the evidence. Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). Under the substantial
evidence standard, however, the Court must view the entire
record as a whole. See Steurer v. Bowen, 815 F.2d,
1249, 1250 (8th Cir. 1987).
the substantial evidence standard presupposes a zone of
choice within which the decisionmakers can go either way,
without interference by the courts. An administrative
decision is not subject to reversal merely because
substantial evidence would have supported an opposite
decision.''Clarke v. Bowen, 843 F.2d 271,
272-73 (8th Cir. 1988) (citations omitted) (internal
quotation marks omitted) (alteration omitted). Likewise, when
considering a Social Security disability claim, it is not the
province of this Court to “reweigh conflicting evidence
. . . or substitute [its] judgment for that of the
ALJ.'' Johnson v. Barnhart, 434 F.3d 650,
653 (4th Cir. 2005) (per curiam) (citation omitted)
(alteration omitted). The Court Amust sustain the ALJ's
decision, even if [it] disagree[s] with it, provided the
determination is supported by substantial evidence.''
Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
most part, Plaintiff does nothing more in his objections than
to make the same arguments the Magistrate Judge has already
considered and rejected. Because the Court agrees with the
Magistrate Judge's treatment of these issues, it need not
grind the same corn again here. There is one objection
Plaintiff makes, however, that deserves further discussion.
asserts the Magistrate Judge erred in holding the ALJ gave an
adequate explanation as to how he considered Plaintiff's
moderate limitation in concentration, persistence, or pace in
assessing Plaintiff's Residual Functional Capacity (RFC).
Specifically, Plaintiff avers the ALJ submitted an improper
hypothetical to the Vocational Expert (VE), instructing the
VE to limit Plaintiff to one or two step tasks that involved
no interaction with the public and only occasional
interaction with coworkers. Plaintiff insists the ALJ was
required to more fully explain his consideration of
Plaintiff's impairments. The Court is unpersuaded.
VE's opinion to support a finding the claimant can
perform specific jobs, “it must be based upon a
consideration of all other evidence in the record, and it
must be in response to proper hypothetical questions which
fairly set out all of [a] claimant's impairments.”
Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989)
(citations omitted). An ALJ has discretion in framing
hypothetical questions as long as they are supported by
substantial evidence in the record, but the VE's
testimony cannot constitute substantial evidence in support
of the Commissioner's decision if the hypothesis fails to
conform to the facts. See Swaim v. Califano, 599
F.2d 1309, 1312 (4th Cir. 1979).
Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015),
the ALJ failed to include any mental limitations in the
hypothetical question he posed to the VE, despite his finding
the claimant had moderate limitations in concentration,
persistence, or pace. Instead, the ALJ relied on the VE's
unsolicited identification of unskilled work to match his RFC
finding. Id. The court held the ALJ erred in
assessing the claimant's RFC, stating “we agree
with other circuits that an ALJ does not account for a
claimant's limitations in concentration, persistence, and
pace by restricting the hypothetical question to simple,
routine tasks or unskilled work.” Id.
(internal quotation marks omitted). Importantly, the court
explained “the ALJ may find that the concentration,
persistence, or pace limitation does not affect Mascio's
ability to work . . . [b]ut because the ALJ here gave no
explanation, a remand is in order.” Id.
Therefore, under Mascio, an ALJ must explain how he
considered a claimant's moderate limitation in
concentration, persistence, or pace in assessing his RFC.
the ALJ held Plaintiff had moderate difficulties in
concentration, persistence, or pace. Tr. at 22. As noted
above, the ALJ posed a hypothetical question to the VE that
included mental limitations to one or two step tasks with no
interaction with the public and only occasional interaction
with coworkers. Id. at 62. For the reasons that
follow, the Court holds this case differs from
Mascio because the ALJ included ...