United States District Court, W.D. North Carolina, Charlotte Division
KELLY L. SETZER, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
Richard L. Voorhees United States District Judge.
MATTER IS BEFORE THE COURT on the Acting
Commissioner of Social Security's
(“Defendant” or “Commissioner”)
Objection to the Memorandum and Recommendation (the
“M&R”) of Magistrate Judge David C. Keesler.
(Doc. 16). The M&R recommends that Plaintiff's Motion
for Summary Judgment (Doc. 11) be denied, that
Defendant's Motion for Summary Judgment (Doc. 13) be
denied, that the final decision of the Commissioner be
vacated, and that the matter be remanded for a new hearing.
(See Doc. 15 at 4-11). The Defendant filed her
objection and the Plaintiff filed her reply (Docs. 16, 17)
and this matter is now ripe for disposition. For the ensuing
reasons, the M&R (Doc. 15) is ADOPTED,
Plaintiff's Motion for Summary Judgment (Doc. 12) is
DENIED, Defendant's Motion for Summary
Judgment (Doc. 13) is DENIED, the decision
of the Commissioner is VACATED, and this
matter is REMANDED for a new hearing to be
held in a manner consistent with this order.
M&R accurately and substantially recounts the procedural
and factual history (see Doc. 15 at 1-3, 5-6), and
neither the Commissioner nor Plaintiff Kelly L. Setzer
objects to the procedural and factual history in the M&R
(see Docs. 16, 17). Therefore, this Order adopts and
incorporates the M&R's statement of the procedural
and factual history.
Standards of Review
Standards Governing Court Review of Commissioner's
to the Social Security Act, 42 U.S.C. § 405(g) and
§ 1383(c)(3), this Court's review of a final
decision of the Commissioner is limited to: (1) whether
substantial evidence supports the Commissioner's
decision, Richardson v. Perales, 402 U.S. 389, 390,
401 (1971), and (2) whether the Commissioner applied the
correct legal standards. 42 U.S.C. § 405(g); Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
“The findings of the Commissioner . . . as to any fact,
if supported by substantial evidence, shall be conclusive . .
. .” 42 U.S.C. § 405(g). Thus, if this Court finds
that the Commissioner applied the correct legal standards and
that her decision is supported by substantial evidence, the
Commissioner's determination may not be overturned.
substantial evidence is not a “large or considerable
amount of evidence, ” Pierce v. Underwood, 487
U.S. 552, 565 (1988), it is “more than a scintilla and
it must do more than create a suspicion of the existence of a
fact to be established.” Smith v. Heckler, 782
F.2d 1176, 1179 (4th Cir. 1986) (brackets and internal
quotation marks omitted). Critically, “[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
decision.'” Dunn v. Colvin, 607 F.
App'x 264, 266 (4th Cir. 2015) (ellipsis omitted)
(quoting Clarke v. Bowen, 843 F.2d 271, 272-73 (8th
reviewing for substantial evidence, the court should not
undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the
[Commissioner].” Mastro v. Apfel, 270 F.3d
171, 176 (4th Cir. 2001) (brackets and internal quotation
marks omitted). Consequently, as long as the judgment is
explained and supported by substantial evidence, this Court
must accept the Commissioner's decision, even if this
Court would reach an opposite conclusion or weigh the
evidence differently if it were conducting a de novo
review of the record. See Hays, 907 F.2d at 1456.
Therefore, the issue before this Court is not whether Setzer
is disabled, but whether Administrative Law Judge
Susan Poulos's (“ALJ Poulos”) finding that
Setzer is not disabled is explained and supported by
substantial evidence and that such decision was reached
based upon a correct application of the relevant
Standard Governing Review of Objections to M&R
assist it in its review of the Commissioner's denial of
benefits, a court may “designate a magistrate judge to
conduct hearings . . . and to submit . . . proposed findings
of fact and recommendations for the disposition [of motions
for summary judgment.]” 28 U.S.C. § 636(b)(1)(B).
A magistrate judge makes only a recommendation as to the
final disposition of a matter. The recommendation has no
presumptive weight and the responsibility to make a final
determination remains with this Court. Mathews v.
Weber, 423 U.S. 261 (1976). Accordingly, the Court must
conduct “a careful review of the Magistrate Judge's
Memorandum and Recommendation as well as a de novo
review of those issues specifically raised” in the
objections. See Lemken v. Astrue, 2010 WL 5057127,
at *1 (W.D. N.C. Dec. 6, 2010) (Voorhees, J.); see
also 28 U.S.C. § 636(b)(1) (“A judge of the
court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations
to which objection is made.”). Once such a review is
complete, “the Court may accept, reject, or modify, in
whole or in part, the findings or recommendation made by the
magistrate judge.” 28 U.S.C. § 636(b)(1).
Plaintiff's Past Relevant Work & Occupation
Four of the disability determination, the administrative law
judge must determine whether the claimant can return to her
past relevant work. Social Security Ruling
(“SSR”) 00-4p, 2000 WL 1898704 at *1. Inherent to
this determination is the administrative law judge's
consideration of what job(s) within the Dictionary of
Occupational Titles (DOT) the claimant held prior to her
alleged date of disability. See Carmickle v. Comm'r
of Soc. Sec. Admin., 533 F.3d 1155, 1167 (9th Cir. 2008)
(noting that, at Step Four, administrative law judge has duty
to make needed factual findings regarding the nature of
claimant's past work). An administrate law judge may rely
on the job titles and job descriptions listed on the
claimant's work history report when determining the
nature of claimant's past relevant work and which
occupation(s) in the DOT the work most appropriately matches.
See Id. at 1166 (discussing claimant's work
history report in context of classifying work within DOT). To
further assist in determining which occupation(s) in the DOT
encompasses the skills, duties, and physical requirements of
a claimant's past ...