Desilets v. Commissioner Social Security Administration

Filing 27

ORDER RULING ON 20 REPORT AND RECOMMENDATION The Commissioner's decision is reversed pursuant to sentence four of 42 U.S.C. § 405(g) and the case is remanded to the Commissioner for further administrative action. Signed by Honorable R Bryan Harwell on 09/28/2015. (egra, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

Amy S. Desilets,

)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin, Acting Commissioner )
of the Social Security Administration,
)
)
Defendant.
)
____________________________________)

Civil Action No.: 2:14-cv-01693-RBH

ORDER

Plaintiff Amy S. Desilets seeks judicial review, pursuant to 42 U.S.C. § 405(g), of a final
decision of the Commissioner of the Social Security Administration (the Commissioner) denying her
claim for disability insurance benefits (DIB) and Supplemental Security Income (SSI) under the Social
Security Act (the Act). The matter is before the Court for review of the Report and Recommendation
(R & R) of United States Magistrate Judge Mary Gordon Baker, made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02(B)(2) for the District of South Carolina. See R & R, ECF No.
20. The Magistrate Judge recommends the Court affirm the Commissioner’s decision. R & R at 5, 14.
Factual Findings and Procedural History
In May 2011, Plaintiff applied for DIB and SSI, alleging a disability onset date of July 27, 2002,
due to bipolar disorder, calcanious heel fracture, compressed back fractures, and Erb’s palsy. (R 367).
The Commissioner denied her application initially and on reconsideration, so Plaintiff requested a
hearing before the Administrative Law Judge (ALJ). The ALJ held a hearing on July 24, 20121, and

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At the hearing the claimant amended her alleged onset date to August 1, 2010.

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issued an unfavorable decision on September 24, 2012 finding Plaintiff was not disabled from August
1, 2010 through the date of the decision. (R 147-156). The Appeals Council denied the plaintiff’s
request for review, after considering certain new evidence submitted by the plaintiff, and the ALJ’s
findings became the final decision of the Commissioner of Social Security. Plaintiff then appealed to
this Court.
The ALJ’s findings were as follows:
1.

The claimant meets the insured status requirements of the
Social Security Act through September 30, 2010.

2.

The claimant has not engaged in substantial gainful activity
since August 1, 2010, the amended alleged onset date (20
CFR 404.1571 et seq. and 416.971 et seq).

3.

The claimant has the following severe impairments: disorders
of the spine and status-post repair of calcaneal fracture with
chronic pain, Erb’s Palsy, bipolar disorder, anxiety, and
attention deficit hyperactivity disorder (20 CFR 404.1520(c)
and 416.920(c)).

....
4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).

....
5.

After careful consideration of the entire record, I find the
claimant has the residual functional capacity to perform a
reduced range of sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a). Specifically, the claimant is able
to lift and carry up to 10 pounds occasionally and lesser
amounts frequently, sit for 6 hours in an 8-hour day, and
stand and walk occasionally with a sit/stand option at the
workstation. The claimant is limited to performing simple,
repetitive tasks in a low stress setting defined as requiring no
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major decision-making or changes in the work setting. She
also is restricted from interacting with the general public.
....
6.

The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).

....
7.

The claimant was born on April 27, 1986 and was 16 years old2,
which is defined as a younger individual age 18-44, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not
the claimant has transferable job skills (See SSR 82-41 and 20 CFR
Part 404, Subpart P, Appendix 2).

10. Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform
(20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
....
11. The claimant has not been under a disability, as defined in the Social
Security Act, from August 1, 2010, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
R. 147-156.
On April 28, 2014, Plaintiff filed a complaint seeking judicial review of the Commissioner’s
decision. Complaint, ECF No. 1. Both Plaintiff and the Commissioner filed briefs, ECF Nos. 15, 17,
and 18, and the Magistrate Judge issued her R & R on July 27, 2015, recommending that the
Commissioner’s decision be affirmed, ECF No. 20. Plaintiff timely filed objections on August 10,
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The Magistrate Judge notes that the plaintiff was actually 24 years old on the alleged onset date, but that the ALJ
properly categorized the plaintiff as a younger individual age 18-44. R&R, p. 2-3, note 1.

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2015. Pl.’s Objs., ECF No. 23. The Commissioner replied to the objections on August 27, 2015.
Def.’s Reply, ECF No. 25.
Plaintiff argues that the ALJ erred in applying an incorrect legal standard regarding the new
evidence presented to the Appeals Council and erred in weighing the evidence. She also asserts that
the ALJ erred in evaluating Plaintiff’s credibility and in evaluating her RFC.
Standard of Review
The federal judiciary has a limited role in the administrative scheme established by the Act,
which provides the Commissioner’s findings “shall be conclusive” if they are “supported by substantial
evidence.” 42 U.S.C. § 405(g). “Substantial evidence has been defined innumerable times as more
than a scintilla, but less than preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964).
Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
This statutorily mandated standard precludes a de novo review of the factual circumstances that
substitutes the Court’s findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157, 1157-58
(4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). The Court must uphold the
Commissioner’s factual findings “if they are supported by substantial evidence and were reached
through application of the correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012); see also Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972) (stating that even if the Court
disagrees with the Commissioner’s decision, the Court must uphold the decision if substantial evidence
supports it). This standard of review does not require, however, mechanical acceptance of the
Commissioner’s findings. Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). The Court “must not
abdicate [its] responsibility to give careful scrutiny to the whole record to assure that there is a sound

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foundation for the [Commissioner]’s findings, and that [her] conclusion is rational.” Vitek, 438 F.2d
at 1157-58.
The Court’s Review of the Magistrate Judge’s R & R
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it 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 Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when
a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 200 (4th Cir. 1983).
Determination of Disability
Under the Act, Plaintiff’s eligibility for the benefits she is seeking hinges on whether she is
under a “disability.” 42 U.S.C. § 423(a). The Act defines “disability” as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a continuous

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period of not less than 12 months.” Id. § 423(d)(1)(A). The claimant bears the ultimate burden to
prove disability. Preston v. Heckler, 769 F.2d 988, 991 n.* (4th Cir. 1985). The claimant may establish
a prima facie case of disability based solely upon medical evidence by demonstrating that his
impairments meet or equal the medical criteria set forth in Appendix 1 of Subpart P of Part 404 of Title
20 of the Code of Federal Regulations. 20 C.F.R. §§ 404.1520(d) & 416.920(d).
If such a showing is not possible, a claimant may also establish a prima facie case of disability
by proving he could not perform his customary occupation as the result of physical or mental
impairments. See Taylor v. Weinberger, 512 F.2d 664, 666-68 (4th Cir. 1975). This approach is
premised on the claimant’s inability to resolve the question solely on medical considerations, and it is
therefore necessary to consider the medical evidence in conjunction with certain vocational factors.
20 C.F.R. §§ 404.1560(a) & 416.960(a). These factors include the claimant’s (1) residual functional
capacity, (2) age, (3) education, (4) work experience, and (5) the existence of work “in significant
numbers in the national economy” that the individual can perform. Id. §§ 404.1560(a), 404.1563,
404.1564, 404.1565, 404.1566, 416.960(a), 416.963, 416.964, 416.965, & 416.966. If an assessment
of the claimant’s residual functional capacity leads to the conclusion that she can no longer perform
her previous work, it then becomes necessary to determine whether the claimant can perform some
other type of work, taking into account remaining vocational factors. Id. §§ 404.1560(c)(1) &
416.960(c)(1). Appendix 2 of Subpart P governs the interrelation between these vocational factors.
Thus, according to the sequence of evaluation suggested by 20 C.F.R. §§ 404.1520 & 416.920, it must
be determined (1) whether the claimant currently has gainful employment, (2) whether she suffers from
a severe physical or mental impairment, (3) whether that impairment meets or equals the criteria of
Appendix 1, (4) whether, if those criteria are met, the impairment prevents her from returning to

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previous work, and (5) whether the impairment prevents her from performing some other available
work.
Discussion
Claimant’s Arguments based on Mascio Case
The claimant asserts in her objections that the Magistrate Judge “failed to explain why the
ALJ’s limitation to unskilled work accommodates a finding that she suffered moderate limitations in
concentration, persistence, and pace.” The claimant cites in support of her argument a Fourth Circuit
published decision issued after the briefing in this case had concluded and therefore not cited to the
Magistrate Judge, Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). In Mascio, the claimant asserted that
the hypothetical to the vocational expert (VE) was legally insufficient in failing to include her mental
limitations. At step three, the ALJ had found that Mascio had an adjustment disorder and also that she
had moderate difficulties with concentration, persistence, or pace as a side effect of her pain
medication. However, the ALJ did not include in his hypothetical to the VE any mention of the mental
limitations. The court agreed with other circuits that have held 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. at 638, citing Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1180 (11th Cir. 2011) as joining the Third, Seventh, and Eighth Circuits. The court agreed
with Mascio that “the ability to perform simple tasks differs from the ability to stay on task” and that
“only the latter limitation would account for a claimant’s limitation in concentration, persistence, or
pace.” Mascio, 780 F.3d at 638. The court further stated:
Perhaps the ALJ can explain why Mascio’s moderate limitation in concentration,
persistence, or pace at step three does not translate into a limitation in Mascio’s residual
functional capacity. For example, the ALJ may find that the concentration, persistence,
or pace limitation does not affect Mascio’s ability to work, in which case it would have
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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.
Id. (citation omitted) . See Jones v. Colvin, No. 4:14CV00200RN, 2015 WL 4773542, at *1 (E.D.N.C.
Aug. 13, 2015) (collecting cases from the North Carolina district remanding cases “because the
limitation in concentration, persistence, and pace was not accounted for in the RFC and/or hypothetical
question to the VE”). See also, Bailey v. Colvin, No. 5:14cv0248, 2015 WL 2449044, at *13 (D.S.C.
May 21, 2015)[R&R adopted after no objections filed, finding “[h]ere, although the ALJ’s RFC finding
was appropriate based on the consultants’ opinion as to his ability to perform simple tasks, the ALJ’s
RFC does not account for Plaintiff’s limitations in concentration, persistence, or pace as to his ability
to stay on task. Accordingly, the undersigned is unable to determine if substantial evidence supports
the ALJ’s RFC assessment.” (emphasis in original)]
In the case at bar, the ALJ found at step three that the claimant did not meet a mental
impairment listing, but he made the following findings:
With regard to concentration, persistence or pace, the claimant has moderate
difficulties. The claimant stated when she is stable mentally and physically, she does
well following instructions but when not taking medications and in pain, she stated she
has difficulty especially with spoken instructions. She reported the most difficulty
handling stress.
(R. 150) In the RFC, the ALJ “limited her to performing simple, repetitive tasks that are low stress and
require no major decision-making or changes in the work setting in crediting some of her complaints
of increased mental symptoms with stress.” (R. 154) However, the limitation to simple tasks does not
sufficiently address the claimant’s limitations in concentration, persistence, or pace as they relate to the
RFC. Therefore, this case must be remanded for the ALJ to further consider the claimant’s limitations
in concentration, persistence, or pace as they relate to the RFC.

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New Evidence Submitted to Appeals Council
The Appeals Council must consider additional evidence if it is “(a) new, (b) material, and (c)
relates to the period on or before the date of the ALJ’s decision.” Wilkins v. Secretary, Dep’t of Health
and Human Servs., 953 F.2d 93, 95-96 (4th Cir. 1991). “Evidence is new within the meaning of this
section if it is not duplicative or cumulative,” and “[e]vidence is material if there is a reasonable
possibility that the new evidence would have changed the outcome.” Wilkins, 953 F.2d at 95-96.
In Meyer v. Astrue, 662 F.3d 700 (4th Cir.2011), the Fourth Circuit held that the Appeals
Council is not required to articulate its rationale for denying a request for review. Id. at 707. The Fourth
Circuit then stated that, when the Appeals Council receives additional evidence and denies review, the
issue for the court is whether the ALJ’s decision is supported by substantial evidence. Id. Further, the
court held that when the evidence is one-sided, the court may be able to determine whether substantial
evidence supports the ALJ’s decision. Id. In Meyer, however, the court held it could not determine
whether substantial evidence supported the ALJ’s decision and thus remanded the case to the
Commissioner for a rehearing. Id.
Here, the Appeals Council considered the additional evidence listed on an order by the Appeals
Council (R. 5-6) and also considered other records listed in the Notice of Appeals Council Action (R.
104), including records from Lowcountry Orthopaedics and Sports Medicine dated July 7, 2012 through
November 12, 2012. The Appeals Council did not consider certain other records from 2013, as it found
that the information concerned a later time.
In considering the new evidence from 2009-2012, the Appeals Council implicitly found that it
was new, material, and relates to the period on or before the date of the ALJ’s decision. Therefore, it
was not necessary for the Magistrate Judge to determine whether the evidence was new or material.

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Also, under Meyer, the Appeals Council was not required to give reasons for denying the request for
review. The issue for the Court is, thus, whether it can determine whether the ALJ’s decision was
supported by substantial evidence without remanding the case for the ALJ to weigh the new evidence.
Here, the Court finds that, since the case is being remanded regarding the RFC, then the ALJ should
also evaluate the new evidence considered by the Appeals Council which is referenced in the claimant’s
objections, that being the notes from the plaintiff’s July 17, 2012 and November 7, 2012 visits to Dr.
Patel at Low Country Orthopaedics.
Credibility
The claimant argues that the ALJ’s credibility analysis is inconsistent, as he found that the
claimant’s impairments could cause the pain alleged, but he later found “no significant pathology” for
her pain. Since the case is being remanded for re-evaluation of the RFC and consideration of the new
evidence, the ALJ should also re-evaluate the claimant’s credibility. This is particularly appropriate
given the additional holding of Mascio that the ALJ should determine a claimant’s credibility before
evaluating the RFC.
Functional Effects of Erb’s Palsy
Finally, the claimant contends in her objections that, in the RFC determination, the ALJ failed
to account for the functional effects of the Erb’s palsy on her shoulder. As noted by the Magistrate
Judge, the ALJ did take into account to some extent the functional effects of the Erb’s palsy: “I
restricted the claimant to sedentary work and provided her with a sit/stand option to prevent aggravation
of back and neck pain and to account for lifting limitations related to Erb’s palsy.” (R. 154) However,
since the Court is remanding the case for other reasons, the ALJ should also re-evaluate the functional
effects of the Erb’s palsy on her shoulder.

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Conclusion
For the foregoing reasons, the Court respectfully rejects the recommendation of the Magistrate
Judge. The action is remanded to the Commissioner to properly evaluate the claimant’s RFC, the new
evidence accepted by the Appeals Council, the claimant’s credibility, and to continue the sequential
evaluation process.
The Commissioner’s decision is reversed pursuant to sentence four of 42 U.S.C. § 405(g) and
the case is remanded to the Commissioner for further administrative action.
IT IS SO ORDERED.
s/R. Bryan Harwell
R. Bryan Harwell
United States District Judge
September 28, 2015
Florence, South Carolina

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