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Davenport v. Berryhill

United States District Court, D. South Carolina, Anderson/Greenwood Division

October 25, 2018

Curtis Mitchell Davenport, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          Timothy M. Cain United States District Judge

         Plaintiff, 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).[1] 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.

         I. Background

         On July 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).

         On 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.

         II. Standard of Review

         The 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).

         However, “[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.

         III. Discussion

         In his 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).

         In her 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).

         A. Difficulties in maintaining concentration, persistence, or pace

          In 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 ...


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