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Harris v. Commissioner of Social Security Administration

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

March 19, 2019

Troso R. Harris, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

         Before the court for review is the Magistrate Judge's Report and Recommendation (“Report”) filed on October 5, 2018 (ECF No. 18). The Report addresses Plaintiff Troso R. Harris's (“Plaintiff”) claim for supplemental security income (“SSI”) and recommends that the court affirm the decision of the Commissioner of Social Security Administration (“the Commissioner”). (ECF No. 18 at 1, 34.) For the reasons stated herein, the court ACCEPTS the Report, incorporating it herein, and AFFIRMS the decision of the Commissioner.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The Report sets forth the relevant facts and legal standards, which this court incorporates herein without a full recitation. (ECF No. 18 at 1-18.) As background, Plaintiff filed an application for SSI on March 12, 2012, which was denied initially and upon reconsideration. (Id. at 1.) After a hearing on May 23, 2014, an Administrative Law Judge (“ALJ”) issued an unfavorable decision against Plaintiff on August 4, 2014. (Id.) The ALJ determined that Plaintiff did not have “an impairment or combination of impairments that me[t] or medically equal[ed] the severity of one of the listed impairments in . . . 20 C.F.R. §§ 416.920(d), 416.925, and 416.926.” (ECF No. 6-4 at 48.) Additionally, the ALJ found that Plaintiff possessed the residual functional capacity (“RFC”) “to perform light work as defined in 20 C.F.R. § 416.967(b).” (Id. at 26.) Specifically, the ALJ found that Plaintiff could “lift or carry up to 20 pounds occasionally and 10 pounds frequently” and “stand or walk for approximately 6 hours of an 8-hour workday and sit for approximately 6 hours of an 8-hour workday with normal breaks.” (Id. at 51.) The ALJ further found Plaintiff was “limited to frequent pushing or pulling with the left lower extremity, no ladders, ropes or scaffolds, frequent climbing, occasional stooping, frequent balancing, kneeling, crouching and crawling and frequent handling.” (Id.) The ALJ determined Plaintiff “must avoid concentrated exposure to fumes, odors, dust and unventilated environments and hazards” and was “limited to simple work with one to two-step tasks.” (Id.) After considering Plaintiff's RFC, age, education, and work experience, the ALJ determined that there were “jobs that exist in significant numbers in the national economy that [Plaintiff could] perform.” (Id. at 62.) On this basis, the ALJ denied SSI to Plaintiff because she was not disabled for purposes of the Social Security Act (“the Act”). (Id. at 63.)

         Plaintiff requested review of the ALJ's decision by the Appeals Council (“the Council”), which the Council granted on December 10, 2015. (Id. at 74.) The Council remanded the matter for further evaluation of Plaintiff's “borderline intellectual functioning in accordance with the special technique described in 20 CFR [§] 416.920a, documenting application of the technique in the decision by providing specific findings and appropriate rationale for each of the functional areas described in 20 CFR [§] 416.920a(c).” (Id. at 74-75.) After a second hearing on December 2, 2016, the ALJ issued another unfavorable decision against Plaintiff on March 20, 2017. (ECF No. 6-2 at 48.) The ALJ determined that Plaintiff did not have “an impairment or combination of impairments that me[t] or medically equal[ed] the severity of one of the listed impairments in . . . 20 C.F.R. §§ 416.920(d), 416.925, and 416.926.” (Id. at 30.) Additionally, the ALJ found that Plaintiff possessed the RFC “to perform light work as defined in 20 C.F.R. § 416.967(b) except frequently push/pull with the left lower extremities, frequently handle, never climb ropes/ladders/scaffolds, occasionally stoop, and frequently climb steps/ramps, balance, kneel, crouch, and crawl.” (Id. at 36.) The ALJ determined Plaintiff “must avoid concentrated exposure to hazards and fumes” and could “perform unskilled SVP 1 and SVP 2[1] work tasks on a sustained basis 5 days a week, 8-hours a day in 2-hour increments for a total of 8-hours with normal breaks in a low stress work environment defined as non-production/non fast-paced work.” (Id.) After considering Plaintiff's RFC, age, education, and work experience, the ALJ again determined that there were “jobs that exist in significant numbers in the national economy that [Plaintiff could] perform.” (Id. at 47.) On this basis, the ALJ denied SSI to Plaintiff because she was not disabled for purposes of the Social Security Act. (Id. at 48.)

         Plaintiff requested a second review of the ALJ's decision by the Council, which the Council granted, and issued its own decision on November 30, 2017. (Id. at 11.) Plaintiff argued the ALJ's RFC determination and the Council's proposed findings did not comport with “Mascio v. Colvin and South Carolina case law interpreting the same” and did not account for all of Plaintiff's limitations. (Id. at 5.) Plaintiff also argued that the ALJ's and the Council's “findings at Step 5 of the Sequential Evaluation Process[2] conflict[ed] with the direct testimony of the vocational expert [(“VE”)] based on [Plaintiff]'s first grade reading level.” (Id. at 6.) Lastly, Plaintiff argued the Council “should find that the [ALJ] committed reversible error as a matter of law in failing to weigh the opinions of the state examiners Drs. Thompson and Loring as required under Social Security Rules and Regulations.” (Id.)

         The Council “considered the arguments made by [Plaintiff], but f[ound] they d[id] not provide a basis for changing the [ALJ's] decision” and that Plaintiff was “not eligible for [SSI] payments under . . . the Social Security Act.” (Id. at 6, 11.) As to the RFC, the Council found

the assessed [RFC] finding [by the ALJ] does contain specific vocational terms to accommodate for [Plaintiff]'s moderate limitation in concentration, persistence or pace: unskilled SVP 1 and SVP 2 work tasks on a sustained basis (5 days a week, 8 hours a day in 2-hour increments for a total of 8 hours with normal breaks) in a low stress environment defined as non-production/non fast paced work.

(Id. at 5.) As to Step 5 of the Sequential Evaluation Process, the Council found “[a] review of the record reveals that the claimant's literacy abilities are above the first grade reading level, ” and listed several examples from the record, including Plaintiff's completion of specialized training in food service and industrial sewing in 1991. (Id. at 6.) Finally, as to the ALJ's failure to weigh the opinion of Dr. Thompson, the Council found the ALJ “did not commit reversible error as a matter of law because the opinion from [Dr.] Thompson . . . is dated October 20, 2005, which is remote in time and dates well before the claimant's amended alleged onset date of disability, April 28, 2009.” (Id.) As to the ALJ's failure to weigh the opinion of Dr. Loring, the Council found the ALJ's “failure to weigh the opinion of Dr. Loring does not constitute an error of law because Dr. Loring's psychological assessment [wa]s a one-time examination, which is not indicative of [Plaintiff's] long-term intellectual functioning, ” and “the evidence of record demonstrates that [Plaintiff] has literacy abilities above the first grade reading level.” (Id.) The Council also adopted the ALJ's (1) “statements regarding the pertinent provisions of the Social Security Act, Social Security Administration [(“SSA”)] Regulations, Social Security Rulings and Acquiescence Rulings, the issues in the case, and the evidentiary facts, as applicable”; and (2) “findings or conclusions regarding whether the claimant is disabled.” (Id. at 6-7.) The Council did not agree with the ALJ's “finding that [Plaintiff] has a severe intellectual disability which did not meet or medically equal the severity of Listing 12.05.” (Id. at 7.) Instead, the Council found that Plaintiff “has a severe impairment of learning disorder (borderline intellectual functioning), but it does not meet or medically equal the severity of Listing 12.11.” (Id. at 8.) The Council's decision became the final decision of the Commissioner. (Id. at 2.) See Sims v. Apfel, 530 U.S. 103, 106-07 (2000) (“SSA regulations provide that, if the Appeals Council grants review of a claim, then the decision that the Council issues is the Commissioner's final decision.”).

         Plaintiff filed the instant action on January 2, 2018, seeking judicial review of the Commissioner's final decision. (ECF No. 1.) To this court, Plaintiff asserted essentially the same errors that she raised before the Council: (1) the Commissioner committed reversible error by failing to weigh the opinions of Drs. Thompson and Loring; (2) the Commissioner “committed reversible error in failing to account for [Plaintiff]'s first grade reading level in his RFC as espoused to the VE, despite clear and irrefutable findings that such was the case. This failure resulted in a further error at Step Five of the Sequential Process”; and (3) the Commissioner “erred in failing to fully account for the Plaintiff's moderate limitations in concentration, persistence, and/or pace in her RFC.” (ECF No. 12 at 6-8, 11.)

         On October 5, 2018, the Magistrate Judge entered the Report. (ECF No. 18.) As to whether the Commissioner committed reversible error by failing to weigh the opinions of Drs. Thompson and Loring, the Magistrate Judge noted that the ALJ's decision cited to Dr. Thompson's examination several times, and that any error in not weighing Dr. Thompson's examining opinion from 2005 was harmless. (Id. at 22.) The Magistrate Judge's harmless-error finding was based on Dr. Thompson's opinion being made “under a previously adjudicated period and not pertaining to the amended alleged onset date nearly four years later” and indication by the ALJ that he “considered Dr. Thompson's one-time examination . . . in relation to the whole record and to examinations taken under a more relevant time period.” (Id.) As to Dr. Loring, who was retained by Plaintiff for an examination, the Magistrate Judge found any error in failing to weigh Dr. Loring's examination was also harmless because “it is clear from the record that the ALJ and the Appeals Council decisions considered the examination and compared it to other testing in the record and to other evidence of Plaintiff's abilities that rose above Dr. Loring's findings.” (Id. at 25.) As to whether the Commissioner's RFC comported with Mascio, the Magistrate Judge found “[t]he RFC determination as explained by the RFC narrative is supported by substantial evidence. While this court in several cases has remanded cases based on Mascio where the ALJ did not explain the RFC in relation to CPP concerns, the ALJ here provided [an] explanation based on medical evidence supporting [what] the RFC found.” (Id. at 31.) Finally, as to whether the ALJ failed to account for Plaintiff's first-grade reading level in his RFC determination and at step five of the Sequential Process, the Magistrate Judge found that “the ALJ fully considered the issue of literacy and cited to substantial evidence to support his finding.” (Id. at 33.) The Magistrate Judge noted that “Plaintiff has pointed to contradictions in the record, ” but stated “it is not within this court's purview to consider whether the evidence met the regulation's definition of illiteracy. Such a finding was the ALJ's to make and the ALJ's finding is supported by a thorough discussion of substantial evidence . . . .” (Id.) Accordingly, the Magistrate Judge recommended affirming the Commissioner's decision. (Id. at 34.) The parties were apprised of their opportunity to file specific objections to the Report by October 19, 2018. (ECF No. 18-1.)

         Plaintiff filed an Objection to the Report on October 9, 2018. (ECF No. 20.) First, as to the opinions of Drs. Thompson and Loring, Plaintiff argues “the Magistrate Judge overlooks the thrust of . . . Plaintiff's contention, that the ALJ and the Appeals Council had an affirmative duty under the regulations and administrative rulings to weigh all opinions of record.” (Id. at 1.) Plaintiff contends the error in failing to weigh these opinions was not harmless because they “directly addressed the major issue in the case, whether or not Plaintiff was able to adapt to other work that existed in the national economy.” (Id. at 3.) Next, Plaintiff asserts the Magistrate Judge erred in finding that the ALJ adequately considered Plaintiff's moderate limitations in concentration, persistence, or pace in assessing her RFC because “nowhere does [the ALJ] specifically outline his reasoning for failing to include any limitations on concentration, persistence, and pace in Step Four of the Sequential Analysis, despite moderate findings of the same at Step Three of the Sequential Analysis.” (Id. at 4.) Plaintiff notes that the ALJ did not “directly issue any restriction with respect to Plaintiff's ability to stay on task and attend to the work a sustained basis for an eight (8) hour workday as the South Carolina [c]ourts have consistently required.” (Id. at 5.) Finally, Plaintiff objects to the Magistrate Judge finding “the ALJ properly considered the issue of literacy.” (Id. at 6.) Plaintiff contends the Magistrate Judge missed her “entire position, ” which “is not that she is illiterate, but rather that she has a first grade reading level.” (Id.) Plaintiff asserts that “every evaluation that [she] underwent from examining consultative examiners yielded a finding that she had a first grade reading level, ” and that the ALJ “simply cannot substitute his lay opinion for that of a licensed medical professional.” (Id.) Accordingly, Plaintiff requests that the court reject the Report and reverse the Commissioner's decision. (Id. at 7.) The Commissioner filed a Response to Plaintiff's Objection on October 18, 2018. (ECF No. 22.)

         II. STANDARD OF REVIEW

         The Magistrate Judge's Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge only makes a recommendation to this court, and the recommendation has no presumptive weight. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The responsibility to make a final determination remains with the court. Id. at 271. As such, the court is charged with making de novo determinations of those portions of the Report to which specific objections are made. See 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). Thus, the court may accept, reject, or modify, in whole or in part, the Magistrate Judge's recommendation or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

         The Act provides that “[t]he 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). While the court is free to conduct a de novo review of the Report, the court's review of the Commissioner's final decision is “limited to determining whether the findings are supported by substantial evidence and whether the correct law was applied.” Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Preston v. Heckler, 769 F.2d 988, 990 (4th Cir. 1985)). “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). When assessing whether the ALJ possessed substantial evidence, the court may not “re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the ...


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