United States District Court, E.D. North Carolina, Eastern Division
ROSE M. ROUNDTREE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
C. FOX Senior United States District Judge.
the court are the following:
(1) the Memorandum and Recommendation ("M&R")
[DE-20] of United States Magistrate Judge Robert B. Jones,
(2) the parties' cross Motions for Judgment on the
Pleadings [DE-15, -17].
issues have been fully briefed, and the matter is now ripe
for ruling. For the reasons addressed below, this court
ADOPTS the findings and recommendations of the Magistrate
Judge, Plaintiffs Motion for Judgment on the Pleadings
[DE-15] is DENIED, Defendant's Motion for Judgment on the
Pleadings [DE-17] is ALLOWED, and the Commissioner's
final decision is AFFIRMED.
The Magistrate Judge's M&R
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. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). This court is charged with making a de novo
determination of those portions of the recommendation to
which specific objections are made, and the court may accept,
reject, or modify, in whole or in part, the Magistrate
Judge's recommendation, or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C.
§ 636(b)(1). 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." Diamond v. Colonial Life & Ace.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
December 6, 2016, the Magistrate Judge issued a M&R, in
which he recommended that Plaintiffs Motion for Judgment on
the Pleadings [DE-15] be denied, Defendant's Motion for
Judgment on the Pleadings [DE-17] be allowed, and the
Commissioner's final decision be affirmed. The Magistrate
Judge advised the parties of the procedures and requirements
for filing objections to the M&R and the consequences if
they failed to do so. Plaintiff filed Objections [DE-21] to
the M&R, to which Defendant filed a Response [DE-22].
Plaintiffs Objections to the M&R
argues that the Magistrate Judge erred in finding that her
case is distinguishable from Mascio v. Colvin, 780
F.3d 632 (4th Cir. 2015), because in Plaintiffs case, the
Administrative Law Judge ("ALJ") did not just limit
her to simple, routine, repetitive tasks, "but added
additional limitations to account for [Plaintiffs]
difficulties in maintaining attention and concentration, and
[she] has not demonstrated how these additional restrictions
are inadequate." Pl.s' Objections [DE-21] at 2
(quoting M&R [DE-20] at 7).
Mascio, the Fourth Circuit Court of Appeals
determined that remand was warranted for three distinct
reasons, only one which is relevant here. 780 F.3d at 632. In
particular, the Fourth Circuit concluded that the
hypothetical posed by the ALJ to the vocational expert
("VE"), and the corresponding residual functional
capacity ("RFC") assessment, failed to include any
mental limitations other than "unskilled work," yet
at step three of the sequential evaluation, the ALJ found
that the claimant had "moderate difficulties in
maintaining her concentration, persistence, or pace as a side
effect of her pain medication." Id. at 637-38.
The Fourth Circuit held that it "agree[d] with other
circuits 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 (quoting
Winschel v. Comm 'r of Soc. Sec, 631 F.3d 1176,
1180 (11th Cir. 2011) (internal quotations marks omitted).
case, the ALJ found that Plaintiff "had shown a
decreased ability in attention and concentration but not to
the extent that a marked finding is appropriate and she can
still perform simple, repetitive, routine tasks." (Tr.
39). In the ALJ's RFC assessment and corresponding
hypothetical to the VE, the ALJ limited Plaintiff to
"simple routine repetitive tasks with no fast pace, only
brief and superficial contact with ...