Hill v. Commissioner of Social Security Administration
Filing
29
ORDER AND OPINION recommitting this matter to the Magistrate Judge for further proceedings consistent with this order. Signed by Honorable J. Michelle Childs on 6/23/2017. (bgoo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
David Roy Hill,
)
)
Plaintiff,
)
)
v.
)
)
Nancy A. Berryhill, Acting Commissioner )
)
of the Social Security Administration, 1
)
Defendant.
)
____________________________________)
Civil Action No. 0:15-cv-05091-JMC
ORDER AND OPINION
Plaintiff David Roy Hill (“Plaintiff”) filed this action seeking judicial review of the final
decision of the Acting Commissioner of the Social Security Administration (the “Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). (ECF No. 1.) This matter is before the court for
review of the Report and Recommendation (“Report”) of United States Magistrate Judge Paige J.
Gossett, issued in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(a)
(D.S.C.). (ECF No. 19.) The Magistrate Judge recommended affirming the Commissioner’s final
decision denying Plaintiff’s claims for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”). (Id. at 13.) Plaintiff timely filed objections to the Magistrate Judge’s
Report. (ECF No. 23.) For the reasons set forth below, the court RECOMMITS the matter to the
Magistrate Judge for further proceedings.
I. RELEVANT BACKGROUND AND LEGAL FRAMEWORK
A thorough recitation of the relevant factual and procedural background of this matter is
discussed in the Report. (See ECF No. 19.) The court concludes, upon its own careful review of
1
Pursuant to Fed. R. Civ. P. 25(d), Acting Commissioner Nancy A. Berryhill has been substituted
for former Acting Commissioner Carolyn W. Colvin as the named defendant in this lawsuit. (See
ECF No. 19 at 1 n.1.)
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the record, that the Magistrate Judge’s factual and procedural summation is accurate and
incorporates it by reference. The court will only reference herein facts pertinent to its analysis.
A. Administrative proceedings
On September 25, 2012, Plaintiff filed applications for DIB and SSI, alleging a disability
onset date of July 31, 2010, due to protruding or bulging discs in his neck and back; arthritis in his
shoulder, radiating pain in his neck, shoulder, and arm; degenerative disc disease; and side effects
from medication. (ECF No. 10-5 at 2, 9; ECF No. 10-6 at 6, 14.) Plaintiff’s claims were denied on
January 11, 2013, and again on reconsideration on January 14, 2013. (ECF No. 10-3 at 2-15; ECF
No. 10-4 at 2-9.)
On March 4, 2014, Plaintiff had a hearing before Administrative Law Judge Thomas G.
Henderson (ECF No. 10-2 at 53-69), who found on March 28, 2014, that Plaintiff was not disabled
under §§ 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act (ECF No. 10-3 at 21-29).
Plaintiff appealed, and, on April 14, 2015, the Appeals Council vacated Henderson’s decision in
light of new evidence presented on appeal and remanded the case for further proceedings. (Id. at
33-35.)
On July 21, 2015, Plaintiff had a second hearing before Administrative Law Judge Marcus
Christ (the “ALJ”). (ECF No. 10-2 at 32-52.) On August 31, 2015, the ALJ again found that
Plaintiff was not disabled under the Social Security Act provisions. (Id. at 17-26.) Thereafter, the
Appeals Council denied Plaintiff’s request for review on April 24, 2015, making the ALJ’s
decision the final decision of the Commissioner for purposes of judicial review. (Id at 14-16.)
B. The legal framework for the ALJ’s decision
The ALJ’s decision followed the familiar five-step process for making a disability
determination:
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[T]he ALJ asks at step one whether the claimant has been working; at step two,
whether the claimant’s medical impairments meet the [relevant] regulations’
severity and duration requirements; at step three, whether the medical
impairments meet or equal an impairment listed in the regulations; at step four,
whether the claimant can perform h[is] past work given the limitations caused
by h[is] medical impairments; and at step five, whether the claimant can
perform other work.
Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015).
“If a claimant fails to demonstrate he has a disability that meets or medically equals a listed
impairment at step three, the ALJ must assess the claimant’s residual functional capacity (“RFC”)
. . . , which is ‘the most the claimant can still do despite [his] physical and mental limitations that
affect [his] ability to work.’” Lewis v. Berryhill, ___ F.3d ___, No. 15-2473, 2017 WL 2381113,
at *2 (4th Cir. June 2, 2017) (brackets omitted) (quoting 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1)). When assessing a claimant’s RFC,
the ALJ must examine “all of the claimant’s medically determinable
impairments of which the ALJ is aware,” “including those not labeled severe
at step two.” In addition, he must “consider all the claimant’s symptoms,
including pain, and the extent to which [his] symptoms can reasonably be
accepted as consistent with the objective medical evidence and other
evidence.” “When the medical signs or laboratory findings show that the
claimant has . . . medically determinable impairment[s] that could reasonably
be expected to produce [his] symptoms, such as pain, the ALJ must then
evaluate the intensity and persistence of the claimant’s symptoms so that the
ALJ can determine how [his] symptoms limit [his] capacity for work.”
Id. (internal citations and brackets omitted) (quoting Mascio, 780 F.3d at 635; 20 C.F.R. §§
404.1525(a)(2), 404.1529(a), (c)(1), 416.925(a)(2), 416.929(a), (c)(1)). Regarding the specific
circumstance when a claimant relies on subjective complaints regarding his pain as evidence of a
restriction on his RFC, the ALJ is to “follow[] a two-step analysis when considering a claimant’s
subjective statements about impairments and symptoms.” Id. at *5 (citing 20 C.F.R. §§
404.1529(b)-(c), 416.929(b)-(c)). Specifically,
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[f]irst, the ALJ looks for objective medical evidence showing a condition that
could reasonably produce the alleged symptoms. Second, the ALJ must
evaluate the intensity, persistence, and limiting effects of the claimant’s
symptoms to determine the extent to which they limit the claimant’s ability to
perform basic work activities.
Id. (internal citations omitted) (citing 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c)); see also
Craig v. Chater, 76 F.3d 585, 594-96 (4th Cir. 1996) (describing two-part test at length).
Importantly, “[t]he second determination requires the ALJ to assess the credibility of the
claimant’s statements about symptoms and their functional effects.” Lewis, 2017 WL 2381113, at
*5 (citing 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)).
C. The ALJ’s decision
Here, regarding the first two steps, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the alleged onset date and had severe impairments, namely
cervical pain, lumbar pain, and right AC joint arthritis. (ECF No. 10-2 at 19.) At the third step, the
ALJ found that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled an impairment in the Listings found in 20 C.F.R. Pt. 404, Subpt. P, App’x 1.
(Id. at 20.) Before proceeding to the fourth and fifth steps, the ALJ determined that Plaintiff had
an RFC allowing him to perform sedentary work with limitations precluding him from climbing
ladders and scaffolds; permitting him to occasionally stoop, crouch, kneel, crawl, and reach
overhead with his right arm; avoiding all exposure to unprotected heights and concentrated use of
moving machinery; and limiting him to simple routine tasks without production rates or pace work.
(Id.)
In assessing Plaintiff’s RFC, the ALJ addressed Plaintiff’s subjective statements about his
pain and other symptoms by following the two-step analysis set forth above. (See id.) As for the
first step, the ALJ found that the objective medical evidence in the record could reasonably produce
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the symptoms of which Plaintiff complained. (Id. at 23.) However, as for the second step, the ALJ
found that Plaintiff’s subjective statements as to the intensity, persistence, and limiting effects of
his symptoms were “not entirely credible.” (Id.) Although the ALJ found that Plaintiff’s statements
were not entirely false, he found them to be “exaggerated” and specifically found Plaintiff’s
allegations that he is unable to perform all work activity “not credible.” (Id. at 24-25.) Accordingly,
the ALJ relied on Plaintiff’s subjective statements to support the addition of limitations on
Plaintiff’s RFC, but he did not view them as a basis for concluding that Plaintiff was disabled. (Id.)
In making his credibility determination, the ALJ began by contrasting the testimony
Plaintiff offered in the first hearing before Administrative Law Judge Henderson with the
testimony he offered at the second hearing. The ALJ summarized Plaintiff’s testimony at the first
and second hearings, and noted several inconsistencies. (Id. at 20-21.) The ALJ noted that
Plaintiff’s testimony as to the reason he stopped working was inconsistent, as he first testified that
he stopped working due to an upcoming move and later testified he stopped working due to his
physical condition. (Id. at 24.) The ALJ also noted that, despite his claims of chronic debilitating
pain, Plaintiff had made several 12-hour road trips for pain management appointments. (Id.) The
ALJ further noted that Plaintiff had also testified that he engaged, to some degree, in cooking,
driving, and grocery shopping, despite claiming that he was disabled. (Id.) The ALJ noted as well
that, although Plaintiff complained of the side effects of his medications in his testimony, he had
several times denied any side effects. (Id.) Lastly, the ALJ noted that, despite Plaintiff’s claim that
he was unable to work as of July 2010, he did not seek any medical attention until over a year later.
(Id. at 21, 23-24.) For these reasons and because the ALJ did not find Plaintiff’s representations as
to his symptoms’ severity to be substantiated by objective medical evidence, the ALJ “could not
find [Plaintiff] fully credible.” (Id. at 24-25.)
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Aside from Plaintiff’s testimony, the ALJ also summarized and assessed the treatment
notes available in the record. The ALJ catalogued Plaintiff’s medical examinations and treatments
from 2011 to 2015, and overall the ALJ appears to have viewed Plaintiff’s symptoms as restricting
the work he could perform but not so much as to be disabling and also generally improving over
time with treatment. (See id. at 21-24.) After cataloguing the treatment notes, the ALJ concluded
that Plaintiff’s “reports of severe chronic pain are not supported by the medical evidence.” (Id. at
24.) One treatment note described by the ALJ is of note here. For a November 2011 examination,
the ALJ noted that the physician found that Plaintiff’s “gait was normal,” that “he had a full range
of motion of all joints in the upper and lower extremities,” that “[h]e required no assistive device
for ambulation,” and that “his palpitation and tenderness were normal.” (Id. at 21 (citing ECF No.
10-7 at 33).)
The ALJ also assessed the weight of the medical opinions in the record. The ALJ
emphasized that no treating physician had ever directed Plaintiff to refrain from work. (Id. at 24.)
The ALJ also took note of the RFC conclusion reached by a state-employed non-examining
physician. (Id.) Although the ALJ accorded this opinion less weight than the weight he would
accord the opinion of a treating physician, the ALJ found that the non-treating physician’s opinion
should be accorded some weight because it was supported by objective medical evidence. (Id.; see
ECF No. 10-3 at 5-8, 12-15.)
Having assessed Plaintiff’s RFC, the ALJ moved on to steps four and five. At step four,
the ALJ found that Plaintiff is unable to perform any past relevant work. (ECF No. 10-2 at 25.) At
step five, the ALJ, considering Plaintiff’s age, education, work experience, and RFC found that
there existed jobs of significant number in the national economy that Plaintiff could perform. (Id.)
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Accordingly, the ALJ determined that Plaintiff was not disabled within the meaning of the Social
Security Act. (Id. at 26.)
C. District court proceedings
On December 30, 2015, Plaintiff commenced the instant action, pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3), to obtain judicial review of the Commissioner’s final decision denying
Plaintiff’s claim for DIB and SSI. (ECF No. 1.) In his brief, Plaintiff argued that the ALJ’s
assessment of his RFC is not supported by substantial evidence. (ECF No. 14 at 11-14.)
Specifically, Plaintiff disputed the ALJ’s finding that he did not seek medical attention for more
than a year after his alleged onset date and asserted that the ALJ emphasized unfavorable portions
of his treatment history and ignored favorable portions; that the ALJ failed to accord weight to the
fact that Plaintiff’s physicians prescribed him powerful medication; that the ALJ erred by
scrutinizing the record for objective support for Plaintiff’s subjective assessment of his symptoms
once the ALJ found that the objective medical evidence discloses conditions that reasonably could
produce the symptoms; that the ALJ erred by failing to identify Plaintiff’s subjective complaints
of pain as well as the evidence that supports or contradicts that complaint; that the ALJ’s
observation that Plaintiff drove, cooked, and shopped does not support the RFC determination;
and that the ALJ presented only a one-sided view of the record and ignored evidence contradicting
his RFC finding. (Id.) In his response to the Commissioner’s brief, Plaintiff reduced these
contentions down to two main points: (1) “the ALJ failed to explain the weight given to evidence
which contradicted his RFC finding,” and (2) the ALJ “failed to connect some of the facts he used
to discredit [Plaintiff] to the RFC finding itself.” (ECF No. 17 at 1-2.)
Of all of the arguments advanced in Plaintiff’s briefing, two are particularly noteworthy
here. First, Plaintiff challenged the ALJ’s method of cataloguing the various treatment notes in the
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record. (ECF No. 14 at 11-12.) In Plaintiff’s view, the ALJ’s method of describing the treatment
notes was one-sided, emphasizing portions of the treatment notes that were unfavorable to Plaintiff
and ignoring or minimizing portions of the treatment notes that were favorable to Plaintiff. (See
id. at 11-13.) For instance, Plaintiff points out that the ALJ’s description of the November 2011
examination failed to account for the portion of the treatment note stating that Plaintiff’s right
shoulder exhibited a spasm and that Plaintiff had diffuse pain over his right shoulder area. (Id. at
11 (citing ECF No. 10-7 at 33).) Plaintiff also pointed to other instances in which he argued that
the ALJ cherrypicked unfavorable portions of treatment notes (see id. at 11), and he argued
generally that the ALJ’s recitation of the medical evidence in the record was one-sided (see ECF
No. 17 at 2). In Plaintiff’s view, the “ALJ cannot simply gloss over the supportive portions of the
record and identify only those facts that support his conclusions; . . . he must explain the weight
given to different exhibits and construct a written rationale that will survive review under the
substantial evidence standard.” (ECF No. 17 at 2.)
Second, Plaintiff argued that the ALJ failed to explain how the treatment notes in the record
and Plaintiff’s reports of his daily activities related to his subjective statements of pain and other
symptoms. In Plaintiff’s view, the ALJ relied on negative examination results to conclude that the
results did not support Plaintiff’s claims of disabling pain but failed to explain how the negative
results undermined, or were inconsistent with, Plaintiff’s claims. (See id.) Likewise, in Plaintiff’s
view, the ALJ relied on some of Plaintiff’s activities—driving, cooking, and shopping—to
conclude that these activities did not support Plaintiff’s claims of pain but failed to explain how
Plaintiff’s ability to engage in these activities to the extent he did is inconsistent with his subjective
claims of pain. (See id.)
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On February 24, 2017, the Magistrate Judge issued her recommendation that the
Commissioner’s final decision denying Plaintiff’s claim for DIB and SSI be affirmed. (ECF No.
19.) In her Report, the Magistrate Judge noted the arguments Plaintiff raised in his brief and
rejected all of them. (See id. at 9-13.) Specifically, the Magistrate Judge addressed Plaintiff’s
arguments that the ALJ failed to explain what weight he gave to the treating physicians’ decisions
to prescribe Plaintiff powerful medications and spinal surgery, that the ALJ presented a one-sided
view of Plaintiff’s treatment notes, and that the ALJ did not explain how Plaintiff’s daily activities
were inconsistent with his claim that he was disabled. (Id. at 11.) The Magistrate Judge concluded
that Plaintiff “failed to demonstrate the ALJ’s determination regarding [Plaintiff]’s credibility is
unsupported or controlled by an error of law.” (Id. at 12.) In reaching this conclusion, the
Magistrate Judge explained that the ALJ considered and evaluated the relevant factors in weighing
Plaintiff’s credibility, that consideration of Plaintiff’s daily activities was only one factor in this
assessment, and that Plaintiff’s reliance on his own one-sided view of the available objective
medical evidence on the record does not mean that the ALJ’s decision was not supported by
substantial evidence. (Id.)
In his objections to the Report, Plaintiff challenges the Magistrate Judge’s conclusion that
the ALJ did not err in assessing Plaintiff’s credibility or his RFC. (ECF No. 23 at 1.) Plaintiff
appears to raise four arguments. First, Plaintiff again seems to assert that the ALJ relied on a onesided view of the medical evidence in the record, which prevents this court from determining that
his RFC finding is supported by substantial evidence. (Id. at 2.) Second, Plaintiff argues that his
history as a consistent wage-earner for most of his life “does not support the ALJ’s portrait of a
liar or malingerer who exaggerated his symptoms.” (Id. at 3.) Third, Plaintiff argues that his
treating physicians’ decisions to prescribe him powerful medications and recommend spinal fusion
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surgery should have been accorded more weight by the ALJ. (Id. at 3-4.) Fourth, Plaintiff argues
that “the ALJ failed to connect his factual and credibility findings to his RFC assessment.” (Id. at
3.) By this, Plaintiff appears to contend that the ALJ did not explain how certain facts he
emphasized—that Plaintiff did not seek medical treatment for more than a year after the alleged
onset date, that several tests showed Plaintiff had normal gait and strength, that Plaintiff made
several 12-hour road trips—are inconsistent with Plaintiff’s claim of disabling pain. (See id. at 34.)
II. LEGAL STANDARD
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court reviews de novo only those
portions of a Magistrate Judge’s Report and Recommendation to which specific objections are
filed, and reviews those portions which are not objected to—including those portions to which
only “general and conclusory” objections have been made—for clear error. Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th
Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept, reject, or
modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter
with instructions. See 28 U.S.C. § 636(b)(1).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. 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 innumerable times
as more than a scintilla, but less than a preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543
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(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. See Vitek v. Finch, 438 F.2d 1157
(4th Cir. 1971). The court must uphold the Commissioner’s decision as long as it is supported by
substantial evidence. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). “From this it
does not follow, however, 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). “[T]he
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. ANALYSIS
Following the issuance of the Magistrate Judge’s Report and the filing of Plaintiff’s
objections, the Fourth Circuit issued its opinion in Lewis v. Berryhill, 2017 WL 2381113. In Lewis,
the Fourth Circuit confronted an ALJ’s RFC finding that employed the two-step analysis for
assessing a claimant’s subjective claims of disabling pain. See id. at *2, *4-5. The parties agreed
that, as for the first-step, the ALJ had properly determined that the objective medical evidence in
the record could reasonably be expected to produce the pain and symptoms the claimant alleged,
but they disagreed as to the second step of the analysis. See id. at *6. The district court affirmed
the ALJ’s RFC finding, and the claimant appealed. See id. at *1.
In vacating the district court’s affirmance, the Fourth Circuit underscored two principles
regarding an ALJ’s RFC assessment under the two-step analysis set out above. First, relying on a
Seventh Circuit opinion, the Fourth Circuit emphasized that “‘[a]n ALJ has the obligation to
consider all relevant medical evidence and cannot simply cherrypick facts that support a finding
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of nondisability while ignoring evidence that points to a disability finding.’” Id. at *8 (quoting
Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). Applying this principle to the facts in Lewis,
the Fourth Circuit determined that an ALJ cannot cherrypick certain portions of a treatment note
that are unfavorable to a claimant while ignoring other portions of the same treatment note that are
favorable to the claimant. The Fourth Circuit’s criticism of the ALJ’s analysis with regard to the
treatment note at issue in Lewis could easily parallel some of Plaintiff’s criticisms in the instant
case:
In the same medical records containing the “normal” findings relied upon by
the ALJ, the physician also noted that Lewis presented with “stabbing, burning
throbbing and tingling, constant pain that increases with elevating the hand
above the shoulder and decreases by rest . . . . neck pain is really bothering her
today,” that a left shoulder MRI “showed scelerotic [sic] lesion,” and that
Lewis indicated “left shoulder pain with marked discomfort on [range of
motion] ... with pain on shoulder abduction and extension of arm.” And Lewis
was given a steroid injection into her shoulder at the conclusion of the
appointment.
Id. at *8 (internal citations and brackets omitted).
Second, the Fourth Circuit also emphasized that, when assessing a claimant’s subjective
claims of pain or other symptoms, if an ALJ relies on the results of objective medical examinations
reported in a treatment note to find that the claimant’s claims are inconsistent with those results,
the ALJ must explain how those results are inconsistent with the claims. Thus, in Lewis, the Fourth
Circuit criticized the ALJ’s analysis because he “did not indicate how the results [reported in
treatment notes] he cited were relevant to the functional limitations Lewis suffered as a result of
her . . . pain.” Id. at *9 (citing Monroe v. Colvin, 826 F.3d 176, 190 (4th Cir. 2016).) Once again,
the application of this principle in Lewis bears a striking similarity to the manner in which Plaintiff
argues it should be applied in the instant case: “The ALJ does not explain, for instance, how Lewis’
normal gait bears any nexus to her complaint of . . . pain.” Id.
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As previously noted, the Magistrate Judge issued her Report before Lewis was issued.
Moreover, the court also notes that it does not appear that the two principles described in the
preceding paragraphs were firmly established in the Fourth Circuit prior to Lewis. The first
principle appears to have been adopted in Lewis by the Fourth Circuit from Seventh Circuit case
law. Although the Lewis court relied on a recent Fourth Circuit opinion in support of the second
principle, it does not appear that principle was clearly stated until the opinion in Lewis. Thus, it
appears that the Magistrate Judge lacked the benefit of a clear statement of the two principles
described above from the Fourth Circuit before issuing her recommendation.
Both in his briefing before the Magistrate Judge and in his objections to her Report,
Plaintiff asserted arguments that fall under the two principles that later received the Fourth
Circuit’s clear approval and application in Lewis. The court is uncertain how the clear expression
and application of these principles by the Lewis court might affect the Magistrate Judge’s appraisal
of the ALJ’s RFC analysis. Accordingly, the court concludes that the matter should be recommitted
to the Magistrate Judge to evaluate Plaintiff’s arguments in the first instance in light of the Fourth
Circuit’s opinion in Lewis.
IV. CONCLUSION
For the foregoing reasons, this matter is RECOMMITTED to the Magistrate Judge for
further proceedings consistent with this order.
IT IS SO ORDERED.
United States District Court Judge
June 23, 2017
Columbia, South Carolina
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