United States District Court, D. South Carolina, Anderson/Greenwood Division
ORDER
TERRY
L. WOOTEN Chief United States District Judge .
Plaintiff,
Amy Marie Mizzell (“Plaintiff”), brought this
action pursuant to 42 U.S.C. §§ 1383(c)(3) to
obtain judicial review of a final decision of the Defendant,
Acting Commissioner of Social Security
(“Commissioner”), ECF No. 1, denying her claims
for supplemental security income benefits. R. 12-31. This
matter is before the Court for review of the Report and
Recommendation (“the Report”) filed on January 9,
2018, by United States Magistrate Judge Jacquelyn D. Austin,
to whom this case had previously been assigned pursuant to
the provisions of 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02(B)(2)(a), (D.S.C.). ECF No. 15. In the
Report, the Magistrate Judge recommends affirming the
Commissioner's decision. Id. Plaintiff filed
“Plaintiff's Exceptions” (Objection) to the
Report on January 19, 2018. ECF No. 16. The Commissioner
filed a reply on February 2, 2018. ECF No. 17. The matter is
now ripe for disposition.
The
Court is charged with conducting a de novo review of
any portion of the Magistrate Judge's Report and
Recommendation to which a specific objection is registered,
and may accept, reject, or modify, in whole or in part, the
recommendations contained in that report. 28 U.S.C. §
636. In conducting this review, the Court applies the
following standard:
The magistrate judge makes only a recommendation to the
Court, to which any party may file written objections . . . .
The Court is not bound by the recommendation of the
magistrate judge but, instead, retains responsibility for the
final determination. The Court is required to make a de
novo determination of those portions of the report or
specified findings or recommendation as to which an objection
is made. 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) (citations omitted).
The
Court has carefully reviewed the Magistrate Judge's
Report and Recommendation, the objection thereto, and all
other relevant filings and memoranda. Plaintiff objects that
the Vocational Expert's (“VE”) identification
of the occupation “production sampler, weigher, and
tester” conflicts with the Dictionary of Occupational
Titles number 701.687-014. ECF No. 16. In the responsive
briefings, both parties state the Magistrate Judge did not
address the [Plaintiff's] claim of conflict between the
occupation of “production sampler, weigher, and
tester” and DOT number 701.687-014. ECF Nos. 16, 17.
However, after a review of the Report and the relevant
filings, it is clear to this Court that it is implicit in the
Magistrate Judge's analysis that she did address the
specific conflict between the occupation of “production
sampler, weigher, and tester” and DOT number
701.687-014. The Magistrate Judge correctly determined this
error was harmless. ECF No. 15 at n.7 (“Further, any
conflict based on the VE's identification of the
occupation of production samplers, weighers, and testers is
harmless because the VE identified other jobs Plaintiff could
perform.”).
The
language in the Report that is relevant to the conclusion
that the error alleged by the Plaintiff is harmless and to
the conclusion that the report should be accepted is as
follows: “[T]here were jobs that existed in significant
numbers that Plaintiff could perform . . . The Court notes
Plaintiff does not argue a conflict exists with respect to
the occupation of graders and sorters, another job the VE
identified as one the Plaintiff could perform.” ECF No.
15 at 19, n.7. This Court further notes the VE testified
there were 52, 000 jobs available in the national economy
associated with the occupation of “graders and
sorters” and 250, 000 jobs in the national economy
associated with the occupation of “assembler”
that the Plaintiff could perform. R. 1462. Importantly,
Plaintiff has not, at any stage, challenged the determination
in the VE's testimony related to “graders and
sorters.” Additionally, Plaintiff has not raised any
objection to the Magistrate Judge's analysis related to
the occupation of “assembler.” Therefore, as it
is clear from the Magistrate Judge's analysis in the
report and the Commissioner's briefing, even accepting
the error raised by the Plaintiff's objection did occur,
there is still substantial evidence to support the ALJ's
determination that there are a substantial number of jobs in
the national economy that Plaintiff can perform.
Therefore
in summary, the Magistrate Judge fully addressed the issue
raised in the Plaintiff's objection to the Report.
Specifically, as stated by the Magistrate Judge, any error is
harmless because the VE stated in his testimony that there
are other jobs in the national economy the Plaintiff could
perform. ECF No. 15 at 19. After careful consideration, the
Court finds that the Administrative Law Judge's decision
to deny benefits is supported by substantial evidence. It is
hereby ORDERED that the Magistrate
Judge's Report, ECF No. 15, is ACCEPTED,
and Plaintiff's objection, ECF No. 16, is
OVERRULED. For the reasons articulated by
the Magistrate Judge, the Commissioner's decision is
hereby AFFIRMED.
IT
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