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Foster v. Berryhill

United States District Court, D. South Carolina, Florence Division

September 29, 2017

Terry R. Foster, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, [1]Defendant.

          ORDER

         This matter is before the court on Plaintiff Terry R. Foster's (“Plaintiff”) Objections to the Magistrate Judge's Report and Recommendation (“Objections”) (ECF No. 23), filed on March 20, 2017. Plaintiff filed a Complaint seeking judicial review of the final decision of the Acting Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g). (ECF No. 1.) The Magistrate Judge issued a Report and Recommendation (“Report”) determining that the Administrative Law Judge (“ALJ”) performed adequate review of the record evidence and that his decision is supported by substantial evidence in the record. (ECF No. 21.) Accordingly, the Magistrate Judge recommended that the court affirm the Acting Commissioner's final decision to deny Plaintiff's application for Social Security benefits. (Id.)

         I. BACKGROUND

         On May 22, 2015, Plaintiff filed an application for Social Security benefits under Title II and Title XVI of the Social Security Act, alleging that he became disabled on December 8, 2014. (ECF No. 16 at 5.) On March 8, 2016, the ALJ issued a decision determining that Plaintiff had not been under a disability as defined by the Social Security Act from December 8, 2014, the alleged onset date, through December 31, 2019, the last date of insured status. (ECF No. 14-2 at 23.) The ALJ determined that Plaintiff had the following severe impairments: ischemic heart disease, COPD, degenerative disc disease of the lumbar spine, borderline intellectual functioning, and affective disorder. (Id.) However, the ALJ concluded that Plaintiff does 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 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” (Id. at 25.) The ALJ determined that Plaintiff has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except Plaintiff could occasionally climb ramps/stairs, ladders, ropes, and scaffolds, as well as occasionally balance, stoop, kneel, crouch, and crawl. Furthermore, the ALJ stated that Plaintiff should have no exposure to extreme heat, cold, or humidity; and is limited to simple, routine tasks and time off tasks that would be accommodated by a normal break schedule. (Id. at 29.)

         On March 8, 2016, Plaintiff requested a review of the ALJ's decision by the Social Security Administration's Appeals Council, which was denied on May 23, 2016. (ECF No. 14-2 at 2-5.)

         On March 7, 2017, the Magistrate Judge issued a Report recommending that this court affirm the Acting Commissioner's decision to deny Plaintiff's application for Social Security benefits. (ECF No. 26 at 13.) On March 20, 2017, Plaintiff filed an objection to the Magistrate Judge's Report. (ECF No. 23.) In the Objections, Plaintiff states that substantial evidence does not support the Acting Commissioner's finding that he is not functionally illiterate. (Id.) Plaintiff further states that the ALJ applied an incorrect “grid rule”[2] in finding that he has a limited education and was not functionally illiterate as defined by the Social Security Act. (Id.) On March 23, 2017, the Acting Commissioner filed a response explaining that the court should overrule Plaintiff's Objections to the Magistrate Judge's Report and Recommendation. (ECF No. 25.)

         II. LEGAL STANDARD

         The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court reviews de novo only those portions of a magistrate judge's report and recommendation to which specific objections are filed, and reviews those portions which are not objected to for clear error, including those portions to which only “general and conclusory” objections have been made. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); See also Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept, reject, or modify, in whole or in part, the recommendation of the magistrate judge or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).

         The role of the federal judiciary in the administrative scheme established by the Social Security Act is a limited one. Section 405(g) of the Act provides, “the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). “Substantial evidence has been defined innumerable times as more than a scintilla, but less than a preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard precludes a de novo review of the factual circumstances that substitutes the court's findings for those of the Commissioner. See Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). The court must uphold the Commissioner's decision if it is supported by substantial evidence. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). “From this it does not follow, however, that the findings of the administrative agency are to be mechanically accepted.” Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). “The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative agency.” Id. “[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 this conclusion is rational.” Vitek, 438 F.2d at 1157-58.

         III. ANALYSIS

         A. The Magistrate Judge's Review

         The Magistrate Judge considered Plaintiff's argument that substantial evidence supports a finding that he is illiterate. Plaintiff contends that a finding that he is illiterate would change the “Grid” applied by the ALJ and would result in a decision that he has a disability. (ECF No. 23.) In the Report, the Magistrate Judge explained that Plaintiff testified that he graduated from high school, but was in special education classes for assistance in reading and mathematics, and reads at the third grade level. (ECF No. 14-2 at 61-73.) Plaintiff was a lead operator in his prior job and he repaired machines, ran a belt press, operated cutters, and changed blades. (Id.) During the administrative hearing, the ALJ questioned Plaintiff about a completed work history form that indicated that he wrote reports as part of his duties. (Id.) Plaintiff answered there was a report at his prior job, but it was a checklist that only required him to check the reason a machine was not running. (Id.) Plaintiff testified that he did not have to use numbers, complete inventory or production reports. (Id.) When the ALJ asked Plaintiff how he knew which boxes to check on the form he used for machines that were not working, he answered that he had memorized it with the help of others and that he was not reading the form. (Id.) Plaintiff testified that the same machines were used for over twenty (20) years and he orally communicated to his coworkers if parts needed to be ordered [for the same machine]. (Id.) Plaintiff also testified he completed an index card with his name, date of birth, and social security number in order to apply for jobs. (Id.) Plaintiff stated that his wife read him letters from the Social Security Administration. (Id.) The Magistrate Judge explained that the ALJ evaluated Plaintiff's educational level under the proper legal standards and cited to substantial evidence to support his finding that Plaintiff was not illiterate. (ECF No. 21 at 12-13.)

         B. Plaintiff's Response to the Magistrate Judge's Report

         In the Objections, Plaintiff asserts the Magistrate Judge made an error in determining that the ALJ's assessment of his educational level is supported by substantial evidence and contends the Acting Commissioner applied improper legal standards in finding that he is literate. (ECF No. 23 at 2-4.) Plaintiff maintains that he only has the ability to read at the third grade level and his reading scores are within the scope of illiteracy as defined by 20 C.F.R. § 404.1564(b)(1). Plaintiff argues that Ms. Michelle Irby, from the Greenville Literacy Association, stated he “can read and understand simple words and ideas, but has some trouble comprehending and applying what he reads.” (ECF No. 23 at 3; 14-6 at 88.) Plaintiff asserts that this statement, combined with his test scores, support his testimony that he is illiterate as defined by 20 C.F.R. § 404.1564(b)(1). Plaintiff concluded that either substantial evidence supports a finding of illiteracy or the Acting Commissioner made a legal error by finding that his ability to read at the third grade level is evidence of literacy. A finding that Plaintiff is illiterate could change the ALJ's decision and direct a finding of disability if “all factors required by 20 C.F.R. Pt. 404, Subpt. P, App. 2 (Grids), §§ 202.00(c) and (d) are met.” (Id. at 5.) As such, the ALJ would have erred in finding that Plaintiff has a limited education and he is not functionally illiterate as defined by the Social Security Act. (Id.)

         C. The Court's Ruling

         1. Application of the Grids The ALJ applied the Medical-Vocational Guidelines (hereafter “Grid”), 20 C.F.R. Pt. 404, Subpt. P. App. 2, Table No. 2, Rule 202.11, as the framework and determined that Plaintiff was not disabled through the date of the ALJ's decision. (ECF No. 14-2 at 47.) The Grid rules apply in the following circumstances:

[W]here an individual with a severe medically determinable physical or mental impairment(s) is not engaging in substantial gainful activity and the individual's impairment(s) prevents the performance of his or her vocationally relevant past work. They also reflect the analysis of the various vocational factors (i.e., age, education, and work experience) in combination with the individual's residual functional capacity (used to determine his or her maximum sustained work capability for sedentary, light, medium, heavy, or very heavy work) in evaluating the individual's ability to engage in substantial gainful activity in other than his or her vocationally relevant past work. Where the findings of fact made with respect to a particular individual's vocational factors and residual functional capacity coincide with all of the criteria of a particular rule, the rule directs a conclusion as to whether the individual is or is not disabled. (Id.)

         Table No. 2-Residual Functional Capacity: Maximum Sustained Work Capability Limited to Light Work as a Result of Severe Medically Determinable Impairment(s)[3]

Rule

Age

Education

Previous Work Experience

Decision

202.09

Closely approaching advanced age

Illiterate or unable to communicate in English

Unskilled or none

Disabled

202.10

Closely approaching advanced age

Limited or less-at least literate and able to communicate in English

Unskilled or none

Not disabled

202.11

Closely approaching advanced age

Limited or less

Skilled or semiskilled-skills not transferable

Not disabled

202.12

Closely approaching advanced age

Limited or less

Skilled or semiskilled-skills transferable

Not disabled

202.13

Closely approaching advanced age

High school graduate or more

Unskilled or none

Not disabled

202.14

Closely approaching advanced age

High school graduate or more

Skilled or semiskilled-skills not transferable

Not disabled

202.15

Closely approaching advanced age

High school graduate or more

Skilled or semiskilled-skills transferable

Not disabled


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