Robinson v. Commissioner of Social Security Administration

Filing 20

ORDER rejecting 15 Report and Recommendation, reversing the Commissioner's decision, and remanding case for further administrative proceedings.Signed by Honorable David C Norton on February 7, 2018.(span, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
SHERRY S. ROBINSON,

)
)
Plaintiff,
)
vs.
)
)
)
NANCY A. BERRYHILL 1, Acting
Commissioner of Social Security
)
)
Defendant.
)
____________________________________)

No. 1:16-cv-03628-DCN
ORDER

This matter is before the court on United States Magistrate Judge Shiva Hodges’s
Report and Recommendation (“R&R”) that this court affirm the final decision of the
Acting Commissioner of Social Security (“the Commissioner”) to deny plaintiff Sherry S.
Robinson’s (“Robinson”) application for disability insurance benefits (“DIB”) and social
security insurance benefits (“SSI”). For the reasons set forth below, the court rejects the
R&R, and reverses and remands the Commissioner’s decision.
I. BACKGROUND
A.

Procedural History

Robinson filed an application for SSI and DIB on April 24, 2013. Tr. 14. In each
application, Robinson alleged disability beginning February 5, 2014 (“the alleged onset
date”). Id. The Social Security Agency denied Robinson’s claim initially and on
reconsideration. Id. Robinson requested a hearing before an administrative law judge
(“ALJ”), and ALJ Gregory M. Wilson held a hearing on July 24, 2015. Tr. 43–85.

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Nancy A. Berryhill became the Acting Commissioner of Social Security on Jan
23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the court
substitutes Nancy A. Berryhill for Carolyn W. Colvin as Defendant in this action.
1

During the hearing, Robinson’s attorney moved to amend her alleged onset date to
February 5, 2014. Tr. 46. The ALJ issued a decision on September 8, 2015, finding that
Robinson was not disabled under the Social Security Act. Tr. 14–33. Robinson
requested Appeals Council review of the ALJ’s decision. The Appeals Council declined
Robinson’s request, Tr. 1–9, rendering the ALJ’s decision the final action of the
Commissioner.
On November 15, 2016, Robinson filed this action seeking review of the ALJ’s
decision. The magistrate judge issued the R&R on August 10, 2017, recommending that
this court affirm the ALJ’s decision. Robinson filed objections to the R&R on August
24, 2017, and the Commissioner responded to Robinson’s objections on September 6,
2017. The matter is now ripe for the court’s review.
B.

Medical History

Because Robinson’s medical history is not directly at issue here, the court
dispenses with a lengthy recitation thereof and instead notes a few relevant facts.
Robinson was born on February 5, 1964 and was 50 years old at the time of her amended
alleged disability onset date. She was 51 years old at the time of the ALJ hearing. She
communicates in English. She completed high school and one year of college. Tr. 50.
Her past relevant work was a teacher’s aide and a school bus driver. Tr. 80.
C.

ALJ’s Findings

The ALJ employed the statutorily-required five-step sequential evaluation process
to determine whether Robinson had been under a disability since the alleged onset date.
The ALJ first determined that Robinson had not engaged in substantial gainful activity
during the relevant period. Tr. 16. At step two, the ALJ found that Robinson suffered

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from the following severe impairments: obesity, carpal tunnel syndrome, left shoulder
impairment, cervical spine impairment, bipolar disorder, and anxiety. Id. At step three,
the ALJ found that Robinson’s impairments or combination of impairments did not meet
or medically equal the severity of one of the listed impairments in the Agency’s Listings
of Impairments (“the Listings”). Tr. 17–20. Before reaching the fourth step, the ALJ
determined Robinson had the residual function capacity (“RFC”) to perform “medium
work” with several limitations. Tr. 20. Specifically, the ALJ found that Robinson could
lift and carry fifty pounds occasionally and twenty-five pounds frequently; she could
stand or walk for six hours in an eight-hour workday, and she could sit for six hours in an
eight-hour workday; she could frequently stoop, kneel, crouch, and crawl; she could
frequently climb ramps and stairs but can only occasionally climb ladders ropes, and
scaffolds; she could frequently overhead reach, handle, and finger; she should avoid
concentrated exposure to hazards; she could perform simple, one-to-two step tasks and
she would require a job with no public contact. Tr. 20–21. The ALJ found at step four
that Robinson was not capable of performing her past relevant work as a bus driver and
teacher’s aide, but that based on her age, education, work experience, and RFC, Robinson
could perform jobs existing in significant numbers in the national economy. Tr. 31.
Therefore, the ALJ concluded that Robinson had not been under a disability within the
meaning of the Act since the alleged onset date.
II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). A party’s failure to object is accepted as agreement with the conclusions of

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the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985). The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination rests with this court. Mathews v. Weber, 423
U.S. 261, 270–71 (1976).
Judicial review of the Commissioner’s final decision regarding disability benefits
“is limited to determining whether the findings of the [Commissioner] are supported by
substantial evidence and whether the correct law was applied.” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is “more than a mere scintilla of
evidence but may be somewhat less than a preponderance.” Id. (internal citations
omitted). “[I]t is not within the province of a reviewing court to determine the weight of
the evidence, nor is it the court’s function to substitute its judgment for that of the
[Commissioner] if his decision is supported by substantial evidence.” Id. Where
conflicting evidence “allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the [ALJ],” not on the reviewing
court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citation omitted).
However, “[a] factual finding by the ALJ is not binding if it was reached by means of an
improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517
(4th Cir. 1987).
III. DISCUSSION
Robinson objects to the magistrate judge’s R&R on three grounds, arguing that
the ALJ erred in: (1) failing to properly account for Robinson’s moderate concentration,
persistence or pace limitations in the RFC assessment; (2) failing to explain the
consideration given to the disability determination by the South Carolina Public

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Employee Benefit Authority (“SCPEBA”) as required by SSR 06-3p; and (3) issuing an
RFC that was inconsistent with the hypothetical posed to the vocational expert (“VE”) at
the hearing. ECF No. 16 at 1–3. The court examines each argument in turn.
1.

Concentration, Persistence or Pace.

Robinson first argues that the RFC assessment failed to properly consider her
moderate limitations in concentration, persistence or pace. EFC No. 16 at 1.
Specifically, Robinson contends the ALJ’s limitation to “simple, one to two step tasks
with no public contact” runs contrary to the Fourth Circuit holding in Mascio v. Colvin,
780 F.3d 632 (4th Cir. 2015), where the Fourth Circuit held that an ALJ’s hypothetical to
the VE limiting the claimant to performing simple, routine, unskilled tasks did not
account for a claimant’s limitations in concentration, persistence and pace. Id. The
Commissioner responds that the ALJ properly assessed the RFC, because the ALJ both
determined that Robinson had moderate difficulties with regard to concentration,
persistence, or pace, and also detailed the evidence in the record which showed minimal
limitations. ECF No. 11 at 16.
Mascio makes clear than an ALJ must explain how he considered the claimant’s
limitation in concentration, persistence, or pace. However, where—as here—the ALJ
sufficiently explains the exclusion of a mental limitation, courts have held that remand is
not required. For example, in Helms v. Colvin, 2016 WL 2848368, at *3 (D.S.C. May
16, 2016) the court found that the ALJ sufficiently explained the exclusion of the
claimant’s mental limitation in assessing the RFC where the ALJ cited to specific
evidence in the record including the opinion of the state agency consultant and two other
doctors supporting an assessment of coherent goal-directed thought processes, normal

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cognitive processing speed, and improved anxiety. Similarly, here the ALJ found that
Robinson suffers from no restriction in daily activity, moderate difficulties in social
functioning, moderate difficulties in concentration, persistence or pace, and no episodes
of extended duration decompensation. Tr. 19. He noted that Robinson had reported
difficulty concentrating and completing tasks, but that she “had the concentration
necessary to cook, clean, drive, read and pay bills” and “attends to her personal hygiene,
prepares simple meals, cleans, washes laundry and irons.” Tr. 19, 22. In the ALJ’s
overview and analysis of Robinson’s medical history, he found that her mental
longitudinal history revealed no cognitive limitations or restrictions, and that Robinson’s
attention was reported to be only a mild impairment. Tr. 30. The ALJ further concluded
that he was giving Robinson “the benefit of the doubt” in assessing a moderate limitation
in concentration, persistence, or pace. Tr. 19. The ALJ also discussed that based on her
psychological evaluations and the opinions of State agency consultants Xanthia
Harkness, Ph.D (“Dr. Harkness”) and Craig Horn, Ph.D. (“Dr. Horn”) Robinson was
talkative, persisted with tasks, and her reading skills, simple comprehension, and social
problem skills fell within the average range. Tr. 19. Additionally, the ALJ recognized
that Robinson had mild difficulty maintaining her cognitive strategy but her attention
span fell within the normal limits, and that she immediately recalled six out of sixteen
words and worked up to fifteen words by the fifth trial, which indicated a “strong,
positive” learning curve. Id. The ALJ also discussed Dr. Todd Cook’s conclusion that
Robinson did not have mental or cognitive limitations. Tr. 23.
It is clear that the ALJ sufficiently explained why he found that Robinson’s
moderate difficulties in concentration, persistence, or pace were minimal. Furthermore,

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the RFC already takes Robinson’s mental limitations into account—she was restricted to
work that includes only “simple, one to two step tasks with no public contact.” Mascio
does not require remand here.
2.

SCPEBA finding of disability

Next, Robinson argues that the ALJ’s failure to consider the letter that indicated
the SCPEBA had approved her for disability benefits was not harmless. ECF No. 16 at 2.
The Commissioner argues that the ALJ did not err in failing to evaluate the SCPEBA
finding of disability because the record contains no explanation for the criteria the
SCPEBA used to come up with the disability finding, and that the ALJ did not ignore the
SCPEBA disability because in the opinion he cited multiple times to the exhibit that
contained the letter. ECF No. 11 at 20–21.
Pursuant to SSR 06-3p, an ALJ cannot ignore disability decisions rendered by
other agencies. 2 However, SSR 06-3p does not stand for the proposition that the SSA is
bound by other agencies’ disability determinations. In relevant part, SSR 06-3p states:
[W]e are required to evaluate all the evidence in the case record that may
have a bearing on our determination or decision of disability, including
decisions by other governmental and nongovernmental agencies . . .
Therefore, evidence of a disability decision by another governmental or
nongovernmental agency cannot be ignored and must be considered . . .
Because the ultimate responsibility for determining whether an individual
is disabled under Social Security law rests with the Commissioner, we are
not bound by disability decisions by other governmental and
nongovernmental agencies . . . However, the adjudicator should explain the
consideration given to these decisions in the notice of decision for hearing
cases and in the case record for initial and reconsideration cases.

2

Social Security Ruling 06-03p was rescinded effective for claims filed on or
after March 27, 2017. Because Robinson filed her complaint prior to this date, Ruling
06-03p applies in this case.
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Social Security Ruling 06-03p, 2006 WL 2329939 (2006). In Bird v. Comm’r of
Soc. Sec. Admin., 699 F.3d 337 (4th Cir. 2012), the Fourth Circuit held that
although another agency’s “decision is not binding on the [SSA,] . . . under the
principles governing SSA disability determinations, another agency’s disability
determination ‘cannot be ignored and must be considered.’” The Fourth Circuit
reasoned that the disability assessments of other agencies serve the same
governmental purpose of providing benefits to persons unable to work, evaluate a
claimant’s ability to perform full-time work, analyze a claimant’s functional
limitations, and require extensive medical documentation to support the claims.
Id.
Consequently, to satisfy SSR 06-03p and Bird, an ALJ must meaningfully
articulate how substantial evidence supports a conclusion that the disability determination
of another agency is entitled to limited or no weight. See Bird, 699 F.3d at 343; Adams
v. Colvin, 2016 WL 697138, *4 (E.D.N.C. February 22, 2016) (SSR 06-03p requirement
not met where ALJ failed to explain the consideration given to claimant’s Medicaid
disability finding in the RFC and the RFC found claimant capable of full range of
medium work); Hildreth v. Colvin, 2015 WL 5577430, *4 (M.D.N.C. September 22,
2015) (finding ALJ committed reversible error when failing to adequately explain why
claimant’s VA rating was given less than substantial weight); Allen v. Colvin, 2013 WL
3983984 (E.D.N.C. Aug. 1, 2013) (remand required where Commissioner did not
indicate weight given to Medicaid determination).
Here, the ALJ failed to mention, much less accord any weight to, the disability
determination by the SCPEBA. This does not meet the requirements under SSR 6-3p and

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the Fourth Circuit precedent set forth in Bird. On June 24, 2014, Robinson received a
letter from the SCPEBA explaining she was entitled to a monthly benefit of disability
retirement as of January 28, 2014. Tr. 213. Based on this letter finding she could not
return to work, it is reasonable to assume that Robinson could not perform more than
sedentary work. The ALJ’s failure to consider the letter cannot be dismissed as harmless
because if the letter had been considered, it is possible that Robinson would have been
limited to sedentary work and adjudicated as disabled. The court makes no finding on
whether Robinson would be limited to sedentary work or if she would be adjudicated as
disabled, just that this is an analysis that was not conducted by the ALJ. Here, like
Adams, the ALJ fails to give an explanation as to why he did not consider the SCPBE
letter. Accordingly, remand is appropriate. The court need not address Robinson’s
remaining argument.

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IV. CONCLUSION
Based on the foregoing, the court REJECTS the magistrate judge’s R&R,
REVERSES the Commissioner’s decision, and REMANDS the case for further
administrative proceedings.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
February 7, 2018
Charleston, South Carolina

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