Davis v. Commissioner of Social Security Administration

Filing 22

ORDER RULING ON REPORT AND RECOMMENDATION adopting 17 Report and Recommendation, affirming the decision of the Commissioner. Signed by Honorable Timothy M. Cain on 12/04/2015. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Donna K. Davis,
Plaintiff,
vs.
Carolyn W. Colvin, Acting Commissioner
of the Social Security Administration,
Defendant.

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C.A. No. 0:14-cv-4314-TMC-PJG
OPINION & ORDER

This matter is before the court with the Report and Recommendation (“Report”) of United
States Magistrate Judge Paige J. Gossett, made in accordance with 28 U.S.C. § 636(b)(1) and Local
Rule 73.02 of the District of South Carolina. (ECF No. 17).1 Donna K. Davis (“Davis”) seeks
judicial review of the Commissioner of Social Security’s (“Commissioner”) denial of her
application for disability insurance benefits (“DIB”) under Title II of the Social Security Act. In
her Report, Magistrate Judge Gossett recommends affirming the Commissioner’s decision. Id.
Davis filed objections to the Report (ECF No. 19), and the Commissioner filed a reply (ECF No.
20). For the reasons provided below, the court adopts the magistrate judge’s Report and affirms
the decision of the Commissioner.

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The recommendation has no presumptive weight, and the responsibility for making a
final determination remains with the United States District Court. See Mathews v. Weber, 423
U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objection is made. The court may
accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge
or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
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I. FACTUAL AND PROCEDURAL BACKGROUND
The facts are set forth in the administrative record and are summarized as follows. Davis
was born in 1966 and was forty-two years old on February 25, 2009, the alleged disability onset
date. (R. at 176, ECF No. 6-4.) She has a college education and has past relevant work experience
as a probation/parole agent for nearly twenty years. (Id. at 308, 314, ECF No. 6-7.) Davis alleges
disability due to “Bipolar type II w/severe depression, Crohn’s Disease, Chronic
Fatigue/Pain(possible Fibromyalgia) [sic], [and] HypoThyroidism.” (Id. at 307, ECF No. 6-7.)
On March 3, 2009, Davis filed an application for DIB. (Id. at 176, ECF No. 6-4.) The
application was denied initially on June 25, 2009, and denied again upon reconsideration on
February 22, 2010. (Id. at 174-76, ECF No. 6-4.) Thereafter, Davis filed a written request for a
hearing on March 5, 2010, before an administrative law judge (“ALJ”). (Id. at 214-15, ECF No.
6-4.) A hearing was held on November 30, 2010. (Id. at 154, ECF No. 6-3.) The ALJ issued a
decision on January 26, 2011, which stated that “although [Davis’s] additional limitations do not
allow [her] to perform the full range of light work, considering [her] age, education and transferable
work skills, a finding of ‘not disabled’ is appropriate . . . .” (R. at 181-89, ECF No. 6-4.) Davis
requested review by the Appeals Council, which subsequently issued an order on June 28, 2012,
vacating the hearing decision and remanding the case for further proceedings to consider evidence
the ALJ did not consider initially, including treating source statements and Davis’s obesity. (Id. at
201-03, ECF No. 6-4.)
A second hearing was held on December 3, 2012. (Id. at 22, ECF No. 6-2.) After the
hearing, the ALJ issued a decision on March 8, 2013, holding that a “not disabled” finding was
appropriate based on Davis’s age, education, work experience, and residual functional capacity
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(“RFC”). (Id. at 22-45, ECF No. 6-2.) Davis requested review by the Appeals Council again, but
it denied the request on September 17, 2014, making the decision of the ALJ the final action of the
Commissioner. (Id. at 1-3, ECF No. 6-2.) Davis filed the instant action on November 6, 2014.
(Compl., ECF No. 1.)
II. THE MAGISTRATE JUDGE’S REPORT
Davis raised two issues before the magistrate judge: (1) that the ALJ posed an improper
hypothetical to the vocational expert (“VE”) at the December 3, 2012 hearing, and (2) that the ALJ
improperly weighed one treating physician’s opinion. (Pl. Br. 20, 22, ECF No. 11.) The magistrate
judge found Davis’s arguments to be without merit. (Report, generally, ECF No. 17.) Further, the
magistrate judge found that Davis did not show that the Commissioner’s decision was unsupported
by substantial evidence or reached through application of an incorrect legal standard. (Id. at 15,
ECF No. 17.) Therefore, the magistrate judge recommended that the Commissioner’s decision be
affirmed. (Id., ECF No. 17.)
III. DISCUSSION OF THE LAW
A. Standard of Review
Under 42 U.S.C. § 405(g), the court may review only whether the Commissioner’s decision
is supported by substantial evidence and whether the correct law was applied. See Myers v.
Califano, 611 F.2d 980, 982 (4th Cir. 1980). Accordingly, the court “must uphold the factual
findings of the [Commissioner] if they are supported by substantial evidence and were reached
through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996). “Substantial evidence” is defined as “such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Id. (internal citations
omitted). Hence, absent any error of law, if the Commissioner’s findings are supported by
substantial evidence, the court should uphold the Commissioner’s findings even if the court
disagrees. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
B. Objections
Davis filed one objection to the magistrate judge’s Report. Davis objects to the magistrate
judge’s determination that the ALJ did not err in failing to include mental limitations with regard
to her concentration, persistence, or pace in the hypothetical question presented to the VE.
(Objection 1, ECF No. 19.) The ALJ uses five steps to determine a claimant’s disability. 20
C.F.R. § 404.1520(a). The relevant steps in this case are steps three, four, and five. At step three,
if the ALJ determines that a claimant’s medically determinable impairments are not sufficient to
automatically entitle the claimant to disability status under the Code of Federal Regulations, then
the analysis proceeds to the next step. (R. at 24, ECF No. 6-2.) Between steps three and four, the
ALJ must determine the claimant’s residual functional capacity (“RFC”), which is an individual’s
ability to do physical and mental work activities on a sustained basis despite limitations from the
individual’s impairments. (Id., ECF No. 6-2.) At step four, the ALJ must determine whether the
claimant has the RFC to perform any past relevant work; if not, the analysis proceeds to step five,
where the ALJ must determine whether the claimant has the RFC to perform any other work. (Id.,
ECF No. 6-2.)
In this case, the ALJ determined at step three that “[w]ith regard to concentration,
persistence, or pace, [Davis] has at most moderate difficulties.” (Id. at 28, ECF No. 6-2 (emphasis
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added).) This determination was based on a detailed examination of Davis’s capabilities, including
findings that Davis “demonstrated no difficulties related to understanding, coherency, or
concentrating” in a face-to-face interview with an agency representative, that she “stated that she
finished what she started,” and that a treating physician found Davis to be “alert, responsive, and
able to maintain attention and concentration” during an examination. (Id. at 28-29, ECF No. 6-2.)
Ultimately, at step three, the ALJ determined that Davis did not have an impairment that
automatically entitled her to disability status under the Code of Federal Regulations. (R. at 26-29,
ECF No. 6-2.) However, the findings concerning Davis’s concentration, persistence, or pace were
directly reflected in the RFC assessment the ALJ undertook before proceeding to step four. (Id. at
30, ECF No. 6-2 (stating the “residual functional capacity assessment reflect[ed] the degree of
limitation [the ALJ] found in the . . . mental function analysis”).) Further, in her credibility
analysis, the ALJ determined that Davis’s “statements concerning intensity, persistence and limiting
effects of these symptoms [of her medical impairments] are not credible to the extent they are
inconsistent with the [RFC] assessment.” (Id. at 32, ECF No. 6-2.) Based on the analysis, the ALJ
concluded that Davis has the RFC to perform “simply, routine, repetitive task[s].” (Id. at 36, ECF
No. 6-2.)
To determine whether Davis could perform work despite her functional limitations under
step four, the ALJ asked the VE the following:
I’m going to ask you if you would to assume a hypothetical person, age 46, college
degree, B.S. in criminal justice, past relevant work same as the claimant’s; with the
ability to do no more than light work with the following limitations: the person
would able to sit, stand, or walk six out of eight hours each, for a total of a eight
hour day, but she would need to be able to change positions; and she would need to
be in close proximity to a bathroom; she would need to take extra, additional breaks
for up to five minutes, probably every hour or two; all right, should also only
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occasional ladder, frequent on all the other posturals; avoid concentrated exposure
to vibration, heat, cold, hazards; and I believe those are the limitations which I gave
before. Any of her prior -- could she return to her prior job?
(Id. at 82, ECF No. 6-2 (errors in original).) Based on the ALJ’s hypothetical, the VE determined
that a hypothetical person could not perform Davis’s past relevant work or any direct transfer jobs.
(Id. at 84, ECF No. 6-2.) However, based on the same hypothetical, the VE later testified that such
an individual could perform three specific light occupations with a specific vocational preparation
(“SVP”) of 2 and that there would be other sedentary jobs that such an individual could perform as
well.2 (R. at 84, ECF No. 6-2.) Thus, at step four, the ALJ concluded Davis could not perform her
past work, but at step five, the ALJ concluded Davis could perform other light occupations.
“In order for a vocational expert’s opinion to be relevant or helpful, it must be based upon
a consideration of all . . . evidence in the record, and it must be in response to proper hypothetical
questions which fairly set out all of claimant’s impairments.” Walker v. Bowen, 889 F.2d 47, 50
(4th Cir. 1989) (internal citation omitted). “There is, however, no requirement that a hypothetical
question contain a function-by-function assessment as required when formulating an RFC. Rather,
the hypothetical only needs to include all of the claimant’s credible impairments.” Torres v. Astrue,
No. 07-2865, 2009 WL 873995, at *8 (D.S.C. Mar. 30, 2009) (unpublished). “Accordingly, if the
record does not support the existence of a limitation, the ALJ need not include it in the hypothetical
question.” Id. (citing Rutherford v. Barnhart, 399 F.3d 546, 554 (3rd Cir. 2005) (“[T]he ALJ must
accurately convey to the vocational expert all of a claimant’s credibly established limitations . . .
.” ) (emphasis in original)).
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The three specific light occupations were office helper, routing clerk, and mail clerk.
(R. at 84.)
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The magistrate judge concluded that the ALJ “sufficiently addressed any limitations in
Davis’s concentration, persistence, or pace in assessing her [RFC] and presenting the hypothetical
question to the [VE].” (Report 9, ECF No. 17.) After review, the court agrees with the magistrate
judge’s Report and Recommendation and concludes the ALJ’s finding was supported by substantial
evidence and the established limitations which the ALJ included in the hypothetical question to the
VE.
In her filings before the magistrate judge and in her objection to the Report and
Recommendation, Davis relies on Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), in support of her
position that the hypothetical presented to the VE was improper. In Mascio, the Fourth Circuit held
that the ALJ’s hypothetical question to the VE at steps four and five was legally insufficient in that
it failed to include – without any explanation by the ALJ in the RFC assessment – the ALJ’s
finding of a moderate limitation on the claimant’s ability to maintain concentration, persistence, or
pace in step three. Id. at 638. However, as the magistrate judge noted, Davis’s case is
distinguishable from Mascio. The Fourth Circuit stated in Mascio that “the hypothetical was
incomplete only if the ALJ failed to account for a relevant factor when determining [the claimant’s]
residual functional capacity.” Id. The Fourth Circuit further addressed how to avoid an incomplete
hypothetical:
Perhaps the ALJ can explain why [a claimant’s] moderate limitation in
concentration, persistence, or pace at step three does not translate into a limitation
in [a claimant’s] residual functional capacity. For example, the ALJ may find that
the concentration, persistence, or pace limitation does not affect [a claimant’s]
ability to work, in which case it would have been appropriate to exclude it from the
hypothetical tendered to the vocational expert. But because the ALJ here gave no
explanation, a remand is in order.

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Id. (internal citation omitted). As discussed above and contrary to the Mascio case, the ALJ
accounted for Davis’s limitations and credibility in determining her RFC prior to proceeding to
steps four and five. Further, the ALJ found that any limitation in Davis’s concentration, persistence,
or pace did not affect her ability to perform simple, routine, repetitive tasks. Therefore, the ALJ
appropriately explained the exclusion of any limitation in Davis’s concentration, persistence, or
pace from the hypothetical question to the VE in steps four and five. Thus, Davis’s reliance on
Mascio is unavailing in this case. Based on the foregoing, the ALJ posed a proper hypothetical
question to the VE and the decision was supported by substantial evidence.
After a thorough review of the Report and Recommendation and the record in this case, the
court adopts the Magistrate Judge’s Report and Recommendation (ECF No. 17) and incorporates
it herein. Therefore, it is
ORDERED that the decision of the Commissioner is affirmed.
IT IS SO ORDERED.
s/Timothy M. Cain
______________________
Timothy M. Cain
United States District Judge
Anderson, South Carolina
December 4, 2015

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