Hix v. Commissioner of Social Security Administration

Filing 21

ORDER RULING ON REPORT AND RECOMMENDATION adopting 14 Report and Recommendation, affirming the decision of the Commissioner. Signed by Honorable Mary Geiger Lewis on 02/15/2017. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
ANTHONY H. HIX,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 1:16-01252-MGL

ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND AFFIRMING DEFENDANT=S FINAL DECISION DENYING BENEFITS
This is a Social Security appeal in which Plaintiff seeks judicial review of the final decision
of Defendant denying his claims for Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI). The parties are represented by excellent counsel. The matter is before
the Court for review of the Report and Recommendation (Report) of the United States Magistrate
Judge suggesting to the Court Defendant=s final decision denying Plaintiff=s claims for DIB and
SSI be affirmed. The Report was made in accordance with 28 U.S.C. ' 636 and Local Civil Rule
73.02 for the District of South Carolina.
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 the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de
novo determination of those portions of the Report to which specific objection is made, and the

Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate
Judge or recommit the matter with instructions. 28 U.S.C. ' 636(b)(1).
The Magistrate Judge filed the Report on January 4, 2017, Plaintiff filed his objections on
February 2, 2017, and Defendant filed her reply on February 15, 2017. The Court has carefully
reviewed Plaintiff=s objections, but holds them to be without merit. Therefore, it will enter
judgment accordingly.
Plaintiff filed his applications for DIB and SSI on August 14, 2012, asserting his disability
commenced on April 1, 2010.

Plaintiff=s applications were denied initially and upon

reconsideration. Plaintiff requested a hearing before an Administrative Law Judge (ALJ), which
the ALJ conducted on August 7, 2014. Then, on October 31, 2014, the ALJ issued a decision
finding Plaintiff was not disabled under the Act. Subsequently, the Appeals Council denied
Plaintiff=s request for review of the ALJ=s decision. Accordingly, the ALJ=s decision became
Defendant=s final decision for purposes of judicial review. Thereafter, Plaintiff filed suit in this
Court seeking judicial review of Defendant=s final decision denying his claims.
The Social Security Administration has established a five-step sequential evaluation
process for determining whether a person is disabled. 20 C.F.R. '' 404.1520(a), 416.920(a).
The five steps are: (1) whether the claimant is currently engaging in substantial gainful activity;
(2) whether the claimant has a medically determinable severe impairment(s); (3) whether such
impairment(s) meets or equals an impairment set forth in the Listings; (4) whether the
impairment(s) prevents the claimant from returning to his past relevant work; and, if so, (5)
whether the claimant is able to perform other work as it exists in the national economy. 20 C.F.R.
'' 404.1520(a)(4)(I)-(v), 416.920(a)(4)(I)-(v).
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Under 28 U.S.C. ' 636(b)(1), a district court is required to conduct a de novo review of
those portions of the Magistrate Judge=s Report to which a specific objection has been made. The
Court need not conduct a de novo review, however, Awhen a party makes general and conclusory
objections that do not direct the court to a specific error in the [Magistrate Judge=s] proposed
findings and recommendations.@ Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see Fed.
R. Civ. P. 72(b). Thus, the Court will address each specific objection to the Report in turn. As
provided above, however, the Court need not—and will not—address any of Plaintiff=s arguments
that fail to point the Court to alleged specific errors the Magistrate Judge made in the Report.
It is Plaintiff=s duty to both produce evidence and prove he is disabled under the Act. See
Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). And, it is the duty of the ALJ, not this Court,
to make findings of fact and to resolve conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990). Under the substantial evidence standard, however, the Court must view the
entire record as a whole. See Steurer v. Bowen, 815 F.2d, 1249, 1250 (8th Cir. 1987).
AAdditionally, the substantial evidence standard presupposes a zone of choice within which
the decisionmakers can go either way, without interference by the courts. An administrative
decision is not subject to reversal merely because substantial evidence would have supported an
opposite decision.@ Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988) (citations omitted)
(internal quotation marks omitted) (alteration omitted). Likewise, when considering a Social
Security disability claim, it is not the province of this Court to “reweigh conflicting evidence . . .
or substitute [its] judgment for that of the ALJ.@ Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005) (per curiam) (citation omitted) (alteration omitted). The Court Amust sustain the ALJ=s

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decision, even if [it] disagree[s] with it, provided the determination is supported by substantial
evidence.@ Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
For the most part, Plaintiff does nothing more in his objections than to make the same
arguments the Magistrate Judge has already considered and rejected. Because the Court agrees
with the Magistrate Judge’s treatment of these issues, it need not grind the same corn again here.
There is one objection Plaintiff makes, however, that deserves further discussion.
Plaintiff asserts the Magistrate Judge erred in holding the ALJ gave an adequate
explanation as to how he considered Plaintiff’s moderate limitation in concentration, persistence,
or pace in assessing Plaintiff’s Residual Functional Capacity (RFC). Specifically, Plaintiff avers
the ALJ submitted an improper hypothetical to the Vocational Expert (VE), instructing the VE to
limit Plaintiff to one or two step tasks that involved no interaction with the public and only
occasional interaction with coworkers. Plaintiff insists the ALJ was required to more fully
explain his consideration of Plaintiff’s impairments. The Court is unpersuaded.
For a VE’s opinion to support a finding the claimant can perform specific jobs, “it must be
based upon a consideration of all other evidence in the record, and it must be in response to proper
hypothetical questions which fairly set out all of [a] claimant’s impairments.” Walker v. Bowen,
889 F.2d 47, 50 (4th Cir. 1989) (citations omitted). An ALJ has discretion in framing hypothetical
questions as long as they are supported by substantial evidence in the record, but the VE’s
testimony cannot constitute substantial evidence in support of the Commissioner’s decision if the
hypothesis fails to conform to the facts. See Swaim v. Califano, 599 F.2d 1309, 1312 (4th Cir.
1979).

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In Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015), the ALJ failed to include any mental
limitations in the hypothetical question he posed to the VE, despite his finding the claimant had
moderate limitations in concentration, persistence, or pace. Instead, the ALJ relied on the VE’s
unsolicited identification of unskilled work to match his RFC finding. Id. The court held the
ALJ erred in assessing the claimant’s RFC, stating “we agree with other circuits that an ALJ does
not account for a claimant’s limitations in concentration, persistence, and pace by restricting the
hypothetical question to simple, routine tasks or unskilled work.” Id. (internal quotation marks
omitted). Importantly, the court explained “the ALJ may find that the concentration, persistence,
or pace limitation does not affect Mascio’s ability to work . . . [b]ut because the ALJ here gave no
explanation, a remand is in order.” Id. Therefore, under Mascio, an ALJ must explain how he
considered a claimant’s moderate limitation in concentration, persistence, or pace in assessing his
RFC. See id.
Here, the ALJ held Plaintiff had moderate difficulties in concentration, persistence, or pace.
Tr. at 22. As noted above, the ALJ posed a hypothetical question to the VE that included mental
limitations to one or two step tasks with no interaction with the public and only occasional
interaction with coworkers. Id. at 62. For the reasons that follow, the Court holds this case
differs from Mascio because the ALJ included specific limitations pertaining to Plaintiff’s mental
limitations in the hypothetical question he posed to the VE.
As stated by the Magistrate Judge:
[U]nlike the ALJ in Mascio, this ALJ provided an adequate explanation for how he
considered Plaintiff’s moderate limitation in concentration, persistence, or pace.
He explained that Dr. Cole observed that Plaintiff was able to concentrate well.
He stated Plaintiff’s reports that he watched television during the day illustrated his
ability to sustain concentration for extended periods. He noted that the record
suggested Plaintiff had little to no difficulty in this category, but that Mr. Watson
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indicated Plaintiff’s attention and concentration were moderately distractible. He
found that Plaintiff’s abilities to concentrate, pay attention, and persist with tasks
were affected, but were not debilitating in nature and could be accommodated in a
work environment.
The ALJ explained his reasons for concluding that Plaintiff was no more
limited than determined in the assessed RFC. He stated that the assessed RFC
reflected the degree of limitation he had found Plaintiff to have in the paragraph B
mental function analysis. He limited Plaintiff to one or two step tasks with no
interaction with the public and only occasional interaction with coworkers. In
discussing the assessed RFC, he noted that Plaintiff’s affective mood disorder had
been treated with medications and outpatient therapy. He acknowledged that
Plaintiff’s medications had been adjusted at times, but found that his depression
had improved with treatment and was relatively stable. The ALJ relied heavily on
Dr. Cole’s observations, noting that he had remarked that the claimant appeared sad
and anxious, as well as had a mildly conflicted affect, but did not opine that the
claimant’s affective mood disorder was disabling in nature, and opined that he was
capable of concentrating well enough to complete a task in a timely manner and has
the ability to learn simple, as well as complex tasks. He recognized that Dr. Cole
opined the claimant had moderate difficulties interacting with others and would
require a job, which does not require him to work directly with the public on a fulltime basis. Thus, the ALJ stated to that end, based on the evidence in the treatment
records and Dr. Cole’s evaluation, the evidence concerning the claimant’s affective
mood disorder does not demonstrate he suffers from severe emotional limitation
that would interfere with his ability to perform the range of work identified above.
The ALJ explained that he relied heavily on Dr. Cole’s assessment and
provided clarification for his determination that Plaintiff’s moderate limitations in
concentration, persistence, or pace limited him no more than to the extent indicated
in the RFC assessment.
ECF No. 14 at 29-31.
In light of the ALJ’s explanation, as comprehensively set forth by the Magistrate Judge,
the Court holds the ALJ cited sufficient evidence to support his conclusion Plaintiff’s moderate
limitation in concentration, persistence, or pace could be accommodated by limiting him to one or
two step tasks involving no interaction with the public and only occasional interaction with
coworkers. The ALJ knows what he means by finding Plaintiff had “moderate” limitations, and
the Court=s Ageneral practice, which [it] see[s] no reason to depart from here, is to take a lower
tribunal at its word when it declares that it has considered a matter.@ Hackett v. Barnhart, 395
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F.3d 1168, 1173 (10th Cir. 2005). Hence, discerning no legal error, and holding the ALJ=s
decision on this issue is supported by substantial evidence, the Court will overrule Plaintiff’s
objection.
In sum, the Court holds there is substantial evidence to support the ALJ=s conclusion
Plaintiff was not disabled under the Act during the relevant time period and the ALJ=s decision is
free from reversible legal error. Further, the determination is reasonable.
After a thorough review of the Report and the record in this case under the standard set
forth above, the Court overrules Plaintiff=s objections, adopts the Report, and incorporates it herein.
Therefore, it is the judgment of the Court Defendant=s final decision denying Plaintiff=s claims for
DIB and SSI is AFFIRMED.
IT IS SO ORDERED.
Signed this 15th day of February, 2017, in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

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