McMackin v. Commissioner of Social Security Administration

Filing 25

ORDER RULING ON REPORT AND RECOMMENDATION adopting 20 Report and Recommendation. Signed by Honorable Mary Geiger Lewis on 9/30/20. (alew, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
JAMES MCMACKIN,
Plaintiff,
vs.
ANDREW SAUL,
Commissioner of Social Security
Administration,
Defendant.

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§ CIVIL ACTION NO. 6:19-01174-MGL-KFM
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ORDER ADOPTING THE REPORT
AND AFFIRMING DEFENDANT’S DECISION TO DENY BENEFITS
This is a Social Security appeal in which Plaintiff James McMackin (McMackin) seeks
judicial review of the final decision of Defendant Andrew Saul (Saul) denying his claim for
disability insurance benefits (DIB). The matter is before the Court for review of the Report and
Recommendation (Report) of the United States Magistrate Judge suggesting Saul’s decision be
affirmed. The Magistrate Judge filed the Report 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 July 9, 2020, McMackin filed his objections on
July 23, 2020, and Saul filed a reply on July 28, 2020. The Court has reviewed McMackin’s
objections, but holds them to be without merit. It will therefore enter judgment accordingly.
On September 6, 2014, McMackin filed his application for DIB. He contends his disability
commenced on January 19, 2014.

Saul denied McMackin’s application initially and upon

reconsideration. McMackin then requested a hearing before an Administrative Law Judge (ALJ),
which the ALJ conducted on March 26, 2018.
On July 3, 2018, the ALJ issued a decision holding McMackin was not disabled. The
Appeals Council denied McMackin’s request for review of the ALJ’s decision. McMackin then
filed this action for judicial review with the Court on April 23, 2019.
For purposes of determining whether one is entitled to disability benefits, the term
“disability” is defined as an “inability to do 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 period of not less than 12 months.” 20
C.F.R. § 404.1505(a).
The Agency has established a five-step sequential evaluation process for determining if 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, “when 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).
It is the plaintiff’s duty both to produce evidence and prove he is disabled under the Act.
See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Nevertheless, the ALJ is to develop the
record and when he “fails in his duty to fully inquire into the issues necessary for adequate
development of the record, and such failure is prejudicial to the claimant, the case should be
remanded.” Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980).
It is also the task of the ALJ, not this Court, to make findings of fact and resolve conflicts
in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). “It is not within the
province of this [C]ourt to determine the weight of the evidence; nor is it [the Court’s] function to
substitute [its] judgment for that of [the defendant] if [the] decision is supported by substantial
evidence.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
In other words, the Court “must sustain the ALJ’s 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). Under the substantial evidence standard, the Court must view the entire record
as a whole. See Steurer v. Bowen, 815 F.2d, 1249, 1250 (8th Cir. 1987).
“[T]he 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

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decision.” Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988) (citations omitted) (internal
quotation marks omitted) (alteration omitted). Put differently, if the ALJ’s “dispositive factual
findings are supported by substantial evidence, they must be affirmed, even in cases where
contrary findings of an ALJ might also be so supported.” Kellough v. Heckler, 785 F.2d 1147,
1149 (4th Cir. 1986).
McMackin makes just two objections to the Magistrate Judge’s Report. First, he maintains
the Magistrate Judge erred in concluding the ALJ adequately evaluated and discussed the
conflicting evidence concerning McMackin’s mental impairments. According to McMackin,
“[t]he ALJ failed to discuss [his] limitations with carrying out detailed instructions,” even though
such limitations were noted in the opinions of both Silvie Kendall, Ph.D. (Kendall), and Craig
Horn, Ph.D. (Horn), two state agency psychologists. Objections at 5. And, as per McMackin, the
ALJ’s alleged failure to appropriately explain why he excluded these limitations amounts to
reversible error under Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015) (holding it was reversible
error when the ALJ failed to explain how the residual functioning capacity assessment accounted
for the claimant’s limitations in concentration, persistence, or pace).
There is, however, a glaring problem in McMackin’s first objection: he misunderstands the
applicability of Mascio and neglects proper consideration of the substantial evidence standard.
McMackin argues “the ultimate premise of Mascio” requires a case “be remanded if the reviewing
court is ‘left to guess about how the ALJ arrived at his conclusions.’” Objections at 2 (quoting
Mascio, 780 F.3d at 367). But, this Court is not left to guess.
The ALJ determined McMackin’s residual functioning capacity (RFC), as it relates to his
mental limitations in carrying out detailed instructions, by weighing several different opinions and
evaluations, including: (1) the opinions of Drs. Kendall and Horn; (2) the opinion of an

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independent consultative examiner on contract to the Social Security Administration, Joseph P.
Goldsmith, Ed.D. (Goldsmith); (3) the opinion of discharge notes from McMackin’s inpatient
psychiatric care in September of 2017; (4) the findings of McMackin’s physical examination; and
(5) the function reports completed by McMackin and his wife.
Dr. Kendall, on August 18, 2015, stated the following in a mental RFC:
1. [McMackin] is able to understand and remember simple
instructions and remember detailed instructions.
2. [McMackin] is able to carry out short and simple instructions but
not detailed instructions. [McMackin] is able to maintain
concentration and attention for periods of at least 2 hours.
3. [McMackin] is able to respond appropriately to co-workers,
supervisors and the general public.
4. [McMackin] is able to be aware of normal hazards and take
appropriate precautions.
A.R. at 106. Dr. Horn, on April 1, 2016, noted limitations consistent with those by Dr. Kendall.
Report at 19 (citing A.R. at 121-23, 130-32).
Conversely, Dr. Goldsmith, on August 11, 2015, opined McMackin “was cognitively
intact, had bright normal intelligence, and ‘would not have difficulty understanding and focusing
on complex task[s].’” Report at 20 (citing A.R. at 1183-85). Also seeming to contradict the
opinions of Drs. Kendall and Horn, McMackin’s discharge notes from inpatient psychiatric care
from September 5-8, 2017, offer somewhat similar conclusions to the opinion of Dr. Goldsmith:
[McMackin] was noted as alert and oriented to all spheres; he had
appropriate appearance, attitude, behavior, and mood; he denied any
thoughts of harming himself or others; he had average level of
intellectual functioning; and he had marginally improved judgment,
insight, and impulse control.
Report at 20 (citing A.R. 1378-1411). Furthermore, McMackin’s physical examination findings
similarly concur with Dr. Goldsmith, routinely describing “[McMackin] as alert and oriented x3,

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with appropriate mood and affect, intact/normal recent and remote memory, as well as good insight
and judgement.” Report at 20 (citations omitted).
Most notably, McMackin himself, in a function report he and his wife completed in
February of 2015, reported no limitations related to his ability to pay attention or to follow written
or verbal instructions. A.R. at 253. For instance, when asked “[f]or how long can you pay
attention?” McMackin answered, “[d]oes not apply to my illness.” Id. Likewise, when asked
“[h]ow well do you follow written instructions? (For example, a recipe),” McMackin again
answered, “[d]oes not apply to my illness.” Id. And finally, when asked “[h]ow well do you
follow spoken instructions?,” McMackin answered, “[v]ery well, however does not apply to my
illness.” Id.
Yes, there well may be substantial evidence in the opinions of Drs. Kendall and Horn that
supports McMackin’s claim. But, as the Court already noted, “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, 843 F.2d at 272-73.
Simply put, there is substantial evidence to support the ALJ’s decision. And, the Court is
unable to find any legal error. Thus, the Court will overrule McMackin’s first objection.
McMackin’s second objection is an extension of the first. McMackin contends the ALJ’s
failure to include mental limitations related to detailed instructions “cannot be found harmless
since the jobs identified by the [vocational expert] were GED reasoning level 2 and 3 and the lower
GED reasoning level of 2 requires the ability to, [a]pply commonsense understanding to carry out
detailed but uninvolved written or oral instructions.” Objections at 5-6 (citation omitted) (internal
quotation marks omitted). In other words, McMackin argues the alleged error of his first objection

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is especially damaging because the vocational expert determined he was capable of working jobs
requiring the ability to understand and carry out detailed but uninvolved instructions.
There is substantial evidence in the record supporting the ALJ’s decision not to include
limitations in McMackin’s RFC concerning his ability to understand and carry out detailed but
uninvolved instructions. Therefore, the Court sees no conflict between the jobs identified by the
vocational expert and McMackin’s RFC. As such, the Court will also overrule McMackin’s
second objection.
After a thorough review of the Report and the record in this case pursuant to the standard
set forth above, the Court overrules McMackin’s objections, adopts the Report, and incorporates
it herein. Therefore, it is the judgment of the Court Saul’s decision denying McMackin’s claim
for DIB is AFFIRMED.
IT IS SO ORDERED.
Signed this 30th day of September, 2020, in Columbia, South Carolina.
/s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

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