Hemming v. Commissioner of Social Security Administration
ORDER adopting in part 14 Report and Recommendation. Signed by Honorable Patrick Michael Duffy on October 11, 2016.(jmcg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Lisa A. Hemming,
Carolyn W. Colvin, Acting
Commissioner of the Social Security
C.A. No.: 1:16-cv-93-PMD-SVH
This matter is before the Court on Defendant Carolyn Colvin’s and Plaintiff Lisa
Hemming’s objections to United States Magistrate Judge Shiva V. Hodges’ report and
recommendation (“R & R”) (ECF Nos. 16, 17, & 14). The Magistrate Judge recommends that
the Administrative Law Judge’s (“ALJ”) decision be reversed in part and remanded for further
proceedings. For the reasons stated herein, the Court adopts the R & R in part, reverses the
ALJ’s decision as detailed herein, and remands this case to the ALJ for further proceedings.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The R & R has no
presumptive weight, and the responsibility for making a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). Parties may make written objections to
the Magistrate Judge’s proposed findings and recommendations within fourteen days after being
served with a copy of the R & R. 28 U.S.C. § 636(b)(1). This Court must conduct a de novo
review of any portion of the R & R to which a specific objection is made, and the Court may
accept, reject, or modify the Magistrate Judge’s findings and recommendations in whole or in
Additionally, the Court may recommit the matter to the Magistrate Judge with
instructions. Id. A party’s failure to object is taken as the party’s agreement with the Magistrate
Judge’s conclusions. See Thomas v. Arn, 474 U.S. 140, 151-52 (1985). Absent a timely, specific
objection—or as to those portions of the R & R to which no specific objection is made—this
Court “must ‘only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
The Court will address Defendant’s objections first, followed by Plaintiff’s objection.
The Defendant objects to the Magistrate Judge’s recommendation that the Court remand this
case for further proceedings on the ALJ’s conclusions relating to Plaintiff’s irritable bowel
syndrome (“IBS”) and anxiety. The Defendant contends that the ALJ’s conclusions on those
issues do not require remand because the ALJ discussed Plaintiff’s IBS and anxiety when
making his step two findings. Relying on Washington v. Astrue, 698 F. Supp. 2d 562, 579
(D.S.C. 2010), the Defendant argues that the ALJ’s consideration of those impairments during
his step two deliberation was sufficient. The Court disagrees.
In Washington, this Court stated that there is “no reversible error where the ALJ does not
find an impairment severe at step two provided that he or she considers that impairment in
subsequent steps.” 698 F. Supp. 2d at 579. Here, the ALJ found that Plaintiff’s IBS and anxiety
were not severe impairments at step two. In making that finding, however, the ALJ did not
discuss Plaintiff’s own statements about those impairments. This was error. Further, the ALJ’s
error was not harmless because he did not subsequently discuss Plaintiff’s IBS or anxiety in his
step three determination, as contemplated by Washington. Although the medical evidence may
be consistent with a finding that Plaintiff’s anxiety and IBS are not severe impairments, the ALJ
must actually make that determination. Because the ALJ failed to do so, the Court cannot
approve his decision.
Accordingly, Defendant’s objection is overruled and the Magistrate
Judge’s recommendation to remand this case back to the ALJ for specific findings as to
Plaintiff’s IBS and anxiety is adopted.
Plaintiff’s sole objection concerns the ALJ’s findings about the maximum number of
hours she can stand during the day. First, the ALJ determined she could stand for a maximum of
two hours a day. Second, the ALJ found that she was capable of working at a job where she
alternated thirty minutes of sitting and standing over the course of an eight-hour workday. The
Magistrate Judge found no error by the ALJ. Plaintiff objects to that conclusion, contending that
the ALJ’s findings were necessarily inconsistent.
According to Plaintiff, the thirty minute
sit/stand rotation finding, applied to an eight-hour workday, equates to a finding that Plaintiff is
capable of standing for four hours a day. Due to the apparent inconsistency of that finding with
the two-hour standing maximum, Plaintiff argues a remand is necessary in order for the ALJ to
eliminate that inconsistency. The Court agrees.
The Magistrate Judge partially addressed Plaintiff’s argument in her R & R, stating that
the ALJ’s determination as to the number of hours Plaintiff could stand was not a maximum
finding, but rather a minimum finding. The Magistrate Judge’s determination was based on the
ALJ’s opinion, which states that “[Plaintiff] can sit for 6 hours in an 8-hour day and stand and
walk for at least two hours in an eight-hour workday.” (R., ECF No. 9-2, at 18 (emphasis
However, the Social Security Administration has stated that “[residual functional
capacity] is not the least an individual can do despite his or her limitations, but the most.” SSR
96-8p, 61 Fed. Reg. 34475 (July 2, 1996). Thus, the ALJ’s inclusion of the words “at least” is
Residual functional capacity is a ceiling on Plaintiff’s capacity, not a floor.
Accordingly, the Court interprets the ALJ’s determination that Plaintiff can stand and walk for at
least two hours as placing a two hour ceiling on her capacity to stand and walk. That two-hour
standing determination cannot be reconciled with the ALJ’s determination that Plaintiff could
alternate sitting and standing every thirty minutes during an eight-hour workday. Therefore,
Plaintiff’s objection to the R & R is sustained, and this issue is remanded to the ALJ for further
For the reasons stated herein, it is ORDERED that Defendant’s objections are
OVERRULED and that Plaintiff’s objection is SUSTAINED. Accordingly, the R & R is
ADOPTED IN PART.
AND IT IS SO ORDERED.
October 11, 2016
Charleston, South Carolina
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