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Fernandez v. Berryhill

United States District Court, D. South Carolina

March 13, 2019

SELIMA RENEE FERNANDEZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Bristow Marchant United States Magistrate Judge.

         The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).

         Plaintiff applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI), [1] alleging disability beginning February 3, 2013, due to irritable bowel syndrome, anemia, hemorrhoids, deep thrombophlebitis, anxiety, abdominal pain, and right ear loss. (R.pp. 400-401, 402-413). Plaintiff's claims were denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on May 24, 2016. (R.pp. 241-279). The ALJ thereafter denied Plaintiff's claims in a decision dated September 15, 2016. (R.pp. 82-102). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-6).

         Plaintiff then filed this action in United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded to the Commissioner for further consideration of her claim. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

         Scope of review

         Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 98 2-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is “substantial evidence.” [emphasis added].

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Nothing that the substantial evidence standard is even “less demanding than the preponderance of the evidence standard”].

         The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. “[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         Discussion

          Plaintiff, who was thirty two (32) years old on her alleged disability onset date, has some college as well as specialized training in her past work as a fraud investigator for Bank of America. (R.pp. 246-248). In order to be considered “disabled” within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months.

         After a review of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer from the “severe” impairments[2] of post-traumatic stress disorder (PTSD), a major depressive disorder, a borderline personality disorder, right ear hearing loss, and fibromyalgia, (R.p. 87), she nevertheless retained the residual functional capacity (RFC) to perform sedentary work, [3] with the additional limitations that she cannot climb ropes, ladders, and scaffolds; can only occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl; and never balance. The ALJ further found that Plaintiff is limited to unskilled, low stress work involving simple, routine, and repetitive tasks, with repetitive tasks defined as being free of fast paced production requirements; involving only simple, work-related decisions; and with few, if any, work place changes. Finally, the ALJ found that Plaintiff could have only occasional interaction with the general public throughout a workday. (R.p. 92). Although the ALJ determined that these limitations precluded Plaintiff from performing her past relevant work, the ALJ concluded that she could still perform other representative occupations with these limitations, such as assembler (DOT # 739.687-086), packer (DOT # 774.684-034), and label cutter (DOT # 585.685-062), and was therefore not entitled to disability benefits. (R.pp. 96-97).

         Plaintiff argues that the ALJ erred in reaching her decision because she improperly failed to weigh all of the medical opinions of record, and failed to properly account in the assigned RFC for Plaintiffs moderate limitation in concentration, persistence, and pace. After careful review and consideration of the record in this case and the arguments presented, and for the reasons set forth hereinbelow, the undersigned is constrained to agree with the Plaintiff that the ALJ committed reversible error by failing to properly account for her moderate limitation in her ability to maintain concentration, persistence, and pace in compliance with Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), thereby requiring a reversal with remand of this case.

         RFC is defined as “the most [a claimant] can still do despite [the claimant's] limitations.” 20 C.F.R. § 404.1545(a)(1). In SSR 96-8p, RFC is defined as a function-by-function assessment of an individual's ability to do sustained, work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours per day, five days per week, or the equivalent. SSR 96-8p, 1996 WL 374184. Here, as noted, in her RFC determination the ALJ limited Plaintiff to unskilled work with the performance of simple, routine and repetitive tasks, in a low stress environment, which is defined as a work environment free of fast paced production requirements, involving only simple work-related decisions, and with few, if any, workplace changes. (R.p. 92). The ALJ then discussed the medical records and her findings for why these limitations were appropriate. See generally (R.pp. 92-95). However, the ALJ also determined that Plaintiffs mental impairments and other limitations resulted in her having moderate limitations in her ability to maintain ...


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