Jenkins v. Commissioner of Social Security Administration
ORDER RULING ON 17 REPORT AND RECOMMENDATION The court adopts the Report and Recommendation of the Magistrate Judge and affirms the decision of the Commissioner. Signed by Honorable Cameron McGowan Currie on 06/29/2017. (egra, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Ruby M. Jenkins,
Civil Action No. 9:16-cv-1524-CMC
OPINION AND ORDER
Nancy A. Berryhill,
Acting Commissioner of Social Security
Through this action, Plaintiff seeks judicial review of the final decision of the
Commissioner of Social Security denying her claim for Disability Insurance Benefits (“DIB”).
Plaintiff appealed pursuant to 42 U.S.C. § 405(g). The matter is currently before the court for
review of the Report and Recommendation (“Report”) of Magistrate Judge Bristow Marchant,
made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rules 73.02(b)(2)(a) and 83.VII.02,
et seq., D.S.C.
The Report, filed May 25, 2017, recommends the decision of the Commissioner be
affirmed. ECF No. 17. On June 7, 2017, Plaintiff filed objections to the Report. ECF No.19. On
June 15, 2017, the Commissioner filed a response to Plaintiff’s objections. ECF No. 20. For the
reasons stated below, the court adopts the Report and affirms the decision of the Commissioner.
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 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 the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The court
reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed
objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.’”)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. Section 205(g) of the Act provides, “[t]he findings of the Secretary
as to any fact, if supported by substantial evidence, shall be conclusive . . . .”1 42 U.S.C. § 405(g).
The court must uphold the Commissioner’s decision as long as it was supported by substantial
evidence and reached through the application of the correct legal standard. Johnson v. Barnhart,
434 F.3d 650 (4th Cir. 2005).
This 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 (4th Cir. 1971). “From 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.” Flack v.
Cohen, 413 F.2d 278, 279 (4th Cir. 1969). “[T]he courts must not abdicate their responsibility to
“Substantial evidence has been defined innumerable times as more than a scintilla, but less than
a preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964).
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.
However, the court does not “reweigh conflicting evidence, make credibility determinations, or
substitute [its] judgment for that of the ALJ.” Johnson, 434 F.3d at 653. “Where conflicting
evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility
for that decision falls on the ALJ.” Id.
Plaintiff applied for DIB on July 9, 2013, alleging disability as of June 1, 2011 due to the
following severe impairments: back problems (discogenic and degenerative), obesity, plantar
fasciitis, bursitis of plantar calcaneus, and peroneal tendonitis. R. at 12. Plaintiff also has chronic
obstructive pulmonary disease, diabetes mellitus, hypertension, hypercholesterolemia, active
rheumatic fever, osteoarthritis and osteopenia. R. at 13. Plaintiff’s application was denied initially
and upon reconsideration. On October 6, 2014, a hearing was held before an Administrative Law
Judge (“ALJ”). On November 21, 2014, the ALJ issued a decision, finding Plaintiff was not
disabled within the meaning of the Act and had the ability to perform sedentary work, including
her past relevant work as a collections clerk within the limitations imposed by the ALJ. The
Appeals Council denied Plaintiff’s request for review of the ALJ’s decision, making the
determination of the ALJ the final decision of the Commissioner. Plaintiff filed this action May
11, 2016. ECF No. 1.
The Magistrate Judge recommends the court affirm the Commissioner’s decision because
it is supported by substantial evidence and the proper legal standards were applied. Plaintiff
objects to the Report, arguing the ALJ limited her to sedentary work in her residual function
capacity (“RFC”) and her previous work at T-Mobile as a customer service representative was
considered “light” work, as opposed to being categorized as a collections clerk, which is sedentary.
ECF No. 19. Therefore, Plaintiff argues, she cannot perform her past relevant work and the ALJ
should have gone on to consider step 5 in the disability evaluation. Plaintiff also disagrees the
ALJ “properly considered and explained the combined effect of all Plaintiff’s impairments, both
severe and non-severe.” Id. at 3.
1) Classification of Past Work
Plaintiff argues, both in her previous submissions and her objections, the ALJ erred in
defining her past work at T-Mobile as a collections clerk instead of a customer service
representative/teller position. A collections clerk position is categorized by the DOT as sedentary,
while a customer service representative/teller position is categorized as light work. As the ALJ
limited her to sedentary work, Plaintiff argues, she cannot perform her past work as a customer
service representative. In addition, Plaintiff contends the ALJ did not discuss the two agency
vocational assessments or Plaintiff’s testimony classifying her T-Mobile position as a customer
The court agrees with the Magistrate Judge’s detailed findings regarding Plaintiff’s past
work and her argument regarding its classification. While previous vocational assessments may
have listed Plaintiff’s position as a customer service representative/teller, they reached the same
conclusion the ALJ reached: Plaintiff is able to perform her past work. R. at 57, 69. The ALJ
gave Plaintiff the benefit of the doubt regarding her pain and symptoms by classifying both the
previous work and Plaintiff’s RFC as sedentary instead of light, based on the testimony of the
Vocational Expert and the record as a whole. R. at 20. For the reasons above and as set forth by
the Magistrate Judge, the court finds no error in categorizing Plaintiff’s past work at T-Mobile as
a collections clerk or in finding Plaintiff able to perform her past work.
The court further agrees with the Magistrate Judge even if the ALJ erred, any error was
harmless. Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (holding an ALJ’s error harmless
where the ALJ “would have reached the same conclusion notwithstanding the initial error”).
Bishop v. Commissioner of Social Sec., 583 F. App’x 65, 67 (4th Cir. 2014) (“[I]f the decision is
overwhelmingly supported by the record though the agency’s original opinion failed to marshal
that support, then remanding is a waste of time.”). Therefore, the decision of the ALJ was
supported by substantial evidence and will not be overturned by this court. This objection is
2) Combined Effect of All Impairments
Plaintiff also objects to the Magistrate Judge’s conclusion the ALJ did not err by failing to
properly consider the combined effects of all Plaintiff’s impairments in reaching her decision.
Specifically, Plaintiff argues in her objections the ALJ did not properly consider the combined
effect of her severe impairments, and she would be unable to sustain gainful employment because
“the pain from each of her multiple physical impairments when combined together would cause
her to frequently miss work or be required to take multiple unscheduled breaks.” ECF No. 19 at
3. However, the ALJ specifically noted she “considered the cumulative effects of the claimant’s
impairments on the claimant’s ability to work” and Plaintiff “fail[ed] to demonstrate her ability to
perform the residual functional capacity below has been compromised by the combination of her
impairments.” R. at 13-14. Therefore, this objection is overruled.
For the reasons set forth above, the court adopts the Report and Recommendation of the
Magistrate Judge and affirms the decision of the Commissioner.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
June 29, 2017
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