United States District Court, D. South Carolina, Anderson/Greenwood Division
Timothy M. Cain United States District Judge
Curtis Mitchell Davenport (“Davenport”), brought
this action pursuant to the Social Security Act
(“SSA”), 42 U.S.C. § 405(g), seeking
judicial review of a final decision of the Commissioner of
Social Security (“Commissioner”) denying his
claim for supplemental security income (“SSI”).
In accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02(B)(2)(a), D.S.C., this matter was referred to a
magistrate judge for pretrial handling. Before this court is
the Magistrate Judge's Report and Recommendation
(“Report”), recommending that the court reverse
the Commissioner's decision pursuant to sentence four of
42 U.S.C. § 405 (g) and remand the case for further
administrative action. (ECF No. 21). The Commissioner filed
objections to the Report (ECF No. 23), and Davenport has
responded to those objections (ECF No. 24). Accordingly, this
matter is now ripe for review.
7, 2014, Davenport applied for SSI, alleging a disability
onset date of May 2, 1985, due to degenerative disc disease,
a left lower leg injury, an affective disorder, an anxiety
disorder, and a substance abuse disorder. (ECF No. 10-5 at
16-22). On June 10, 2016, an Administrative Law Judge
(“ALJ”) held a hearing and heard testimony from
Davenport and a vocational expert (“VE”). (ECF
No. 10-2 at 34-59).
September 15, 2016, the ALJ denied Davenport's claim for
benefits. Id. at 16-33. In his decision, the ALJ
found that Davenport suffered from the following severe
impairments: degenerative disc disease, a left lower leg
injury, an affective disorder, an anxiety disorder, and a
substance abuse disorder. Id. at 18. The ALJ
concluded that, despite limitations, Davenport could perform
jobs that exist in significant numbers in the national
economy. Id. at 27. Davenport sought review of his
case by the Appeals Council. However, the Appeals Council
denied Davenport's request for review, making the
ALJ's decision the final decision of the Commissioner.
Id. at 2. This action followed.
Standard of Review
federal judiciary has a limited role in the administrative
scheme established by the SSA. 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 . . . 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. Vitek v.
Finch, 438 F.2d 1157 (4th Cir. 1971). Thus, in its
review, the court may not “undertake to re-weigh
conflicting evidence, make credibility determinations, or
substitute [its] own judgment for that of the
[Commissioner].” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
“[f]rom this it does not follow . . . 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
agency.” Flack v. Cohen, 413 F.2d 278, 279
(4th Cir. 1969). Rather, “the 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.
brief, Davenport raised three issues for review: (1) the ALJ
did not sufficiently account for Davenport's moderate
difficulties in maintaining concentration, persistence, or
pace in the residual functioning capacity
(“RFC”); (2) the ALJ failed to explain his
rejection of Dr. John Whitley's opinion that Davenport
may work best in solitary work tasks; and (3) the ALJ failed
to properly consider the credibility of Davenport's
testimony regarding his limitations in concentration,
persistence, and pace. (ECF No. 15 at 7, 8-10, 10-11). In her
Report, the magistrate judge found that the ALJ's
decision was not supported by substantial evidence because
the ALJ failed to include in the RFC Davenport's moderate
limitations in concentration, persistence, and pace, which is
required by the holding in Mascio v. Colvin, 780
F.3d 632 (4th Cir. 2015). The magistrate judge recommended
that this action be reversed and remanded for the ALJ to make
a proper RFC determination. Because she recommended remand on
this issue, the magistrate judge did not address the other
two issues. (Report at 22).
objections, the Commissioner contends that the magistrate
judge erred in recommending reversing the ALJ's decision.
The Commissioner argues that the magistrate judge failed to
consider the holding in Sizemore v. Berryhill, 878
F.3d 72 (4th Cir. 2017), or its progeny. (Objections at 5-6).
She contends that the ALJ properly relied on the opinions of
Drs. John C. Whitley, III, and Cal VanderPlate, Ph.D., and
that the RFC complies with the holding in
Sizemore.She also contends that a remand is not
warranted by the other two issues raised. (Objections at 11
n.4). In response to the Commissioner's objections,
Davenport contends that the magistrate judge did not err and
the court should adopt the Report. (ECF No. 24).
Difficulties in maintaining concentration, persistence, or
Mascio v. Colvin, 780 F.3d 632, the Fourth Circuit
Court of Appeals found that the ALJ erred in assessing the
claimant's RFC. The court stated that it “agree[d]
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. at
638. The court explained that it was possible for the ALJ to
find that the moderate concentration, persistence, or pace
limitation did not affect the claimant's ability to work,
but that remand was required “because the ALJ here gave
no explanation.” Id. District courts have
interpreted the Fourth Circuit's holding in
Mascio to require an ALJ to explain how the
claimant's limitation in concentration, persistence, or
pace was accounted for in the RFC. See Sipple v.
Colvin, No. 8:15-1961-MBS-JDA, 2016 WL 4414841, at *9
(D.S.C. Jul. 29, 2016). Subsequently, in Sizemore ...