Richardson v. Commissioner of the Social Security Administration
Filing
34
OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the Report and Recommendation and incorporates it herein by reference to the extent it is consistent with this order. The decision of the Commissioner to deny benefits is, therefore,REVERSED and REMANDED for additional consideration. Signed by Honorable Bruce Howe Hendricks on 3/13/2015. (gnan )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Mellisa Richardson,
) Civil Action No.: 5:13-1846-BHH
)
Plaintiff, )
)
v.
)
OPINION AND ORDER
)
Carolyn W. Colvin,
)
Acting Commissioner of Social
)
Security,
)
)
Defendant. )
______________________________ )
The plaintiff, Mellisa Richardson (“the plaintiff”), brought this action pursuant to 42
U.S.C. § 405(g) to obtain judicial review of a final decision of the Defendant, Acting
Commissioner of Social Security (“Commissioner”), denying her claim for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act. In accordance with 28
U.S.C. § 636(b)(1)(B) and Local Rules 73.02(B)(2)(a) and 83.VII.02, D.S.C., this matter
was referred to United States Magistrate Judge Kaymani D. West for pretrial handling. On
January 22, 2015, the magistrate judge issued a Report and Recommendation in which she
could not determine that the Commissioner’s decision was based on substantial evidence.
Accordingly, the magistrate judge recommended reversing and remanding the
Commissioner’s decision for further administrative action.
(ECF No. 28.)
The
Commissioner filed Objections on February 9, 2015 (ECF No. 30), and on February 25,
2015, the plaintiff filed a Reply (ECF No. 32). For the reasons stated below, the Court
adopts the Report and Recommendation and reverses and remands the Commissioner’s
decision for further administrative action.
FACTUAL AND PROCEDURAL BACKGROUND
The Report and Recommendation sets forth in detail the relevant facts and
standards of law on this matter, and the Court incorporates them and summarizes below
in relevant part. The plaintiff was 37 years old on the date of her alleged disability onset
date of June 30, 2007, has completed high school, and her past relevant work includes
retail assistant manager and cashier. (R. at 296, 301, 305.) The plaintiff’s application was
denied initially and on reconsideration. (R. at 211-12, 213-14.) A hearing was held before
an ALJ who issued an unfavorable decision dated December 8, 2011, finding that the
plaintiff was not disabled within the meaning of the Act. (R. at 96-107.) The Appeals
Council denied the plaintiff’s request for review (R. at 1-4), making the ALJ’s decision the
final decision of the Commissioner. The plaintiff subsequently filed an action in this Court
on July 5, 2013 (ECF No. 1).
REPORT AND RECOMMENDATION
The magistrate judge recommends reversing and remanding the ALJ’s decision.
(ECF No. 28 at 31.) The magistrate judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court
is charged with making a de novo determination of those portions of the Report and
Recommendation 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 to her with instructions. 28 U.S.C. § 636(b)(1). “However, the Court is not required
to review, under a de novo or any other standard, the factual or legal conclusions of the
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magistrate judge as to those portions of the report and recommendation to which no
objections are addressed. While the level of scrutiny entailed by the Court’s review of the
Report thus depends on whether or not objections have been filed, in either case the Court
is free, after review, to accept, reject, or modify any of the magistrate judge’s findings or
recommendations.” Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137,
138 (D.S.C. 1992) (internal citations omitted).
STANDARD OF REVIEW
The role of the federal judiciary in the administrative scheme established by the
Social Security Act is a limited one. Under 42 U.S.C. § 405(g), the court may only review
whether the Commissioner’s decision is supported by substantial evidence and whether the
correct law was applied. See 42 U.S.C. § 405(g) (“The findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive .
. . .”); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). “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); see, e.g., Daniel v. Gardner, 404
F.2d 889 (4th Cir. 1968); Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966); Tyler v.
Weinberger, 409 F. Supp. 776 (E.D. Va. 1976). In order for a reviewing court to determine
whether the Commissioner based a decision on substantial evidence, “the decision must
include the reasons for the determination . . . .” Green v. Chater, 64 F.3d 657, 1995 WL
478032, *2 (4th Cir.1995) (citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir.1986)).
The statutorily mandated standard precludes a de novo review of the factual circumstances
that substitutes the Court’s findings for those of the Commissioner. See, e.g., Vitek v.
Finch, 438 F.2d 1157 (4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968).
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Accordingly, “the court [must] uphold the [Commissioner’s] decision even should the court
disagree with such decision as long as it is supported by ‘substantial evidence.’” Blalock
v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). As noted by Judge Sobeloff in Flack v.
Cohen, 413 F.2d 278 (4th Cir. 1969), “[f]rom 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 action.” Id. at 279. “[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 his conclusion is rational.” Vitek, 438 F.2d at 1157-58.
DISCUSSION
The defendant filed objections to the Report and Recommendation (“Objections”)
on February 9, 2015 (ECF No. 30), and the plaintiff filed a reply on February 25, 2015 (ECF
No. 32). The defendant objects in various ways to the magistrate judge’s recommendation
that the ALJ did not perform a proper Listing analysis at Step Three of the Sequential
Evaluation Process.
This is an admittedly overcautious outcome recommended by the magistrate judge
but the right one. The ALJ has confused the record either for failing to actually consider
Listing 3.03 or for misidentifying it. (R. at 103.) The plaintiff has offered some colorable
quantum of evidence in satisfaction. (ECF No. 28 at 28; R. at 384-89, 454-55, 457-62, 47176, 479-489); see Fender v. Commissioner of Social Security, 2013 WL 422508 at *7 (S.D.
OH. Feb. 4, 2013). And, the magistrate judge reasonably concluded that the consideration
of the plaintiff’s doctor’s visit was not clear. (See R. at 103.) The ALJ is not required to
mention every visit; she is required to explain sufficiently to permit review.
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The defendant has posed reasonable challenges to the caliber of such evidence and
the unlikelihood of success on remand. But, the undersigned would decline to make the
qualitative call, against the applicable standard of review, and, instead, would give the
administrative process opportunity to make a more clean record for review. The benefits
awards potentially owing to the plaintiff are always serious. The Court would take every
precaution, based on the circumstances here.
CONCLUSION
The Court has carefully reviewed the record, including the findings of the ALJ, the
Commissioner’s objections to the Report and Recommendation, and the plaintiff’s reply.
The Court concurs in the recommendation of the magistrate judge and thus adopts the
Report and Recommendation and incorporates it herein by reference to the extent it is
consistent with this order. The decision of the Commissioner to deny benefits is, therefore,
REVERSED and REMANDED for additional consideration consistent with this Order.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
March 13, 2015
Greenville, South Carolina
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