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Setzer v. Berryhill

United States District Court, W.D. North Carolina, Charlotte Division

February 8, 2017

KELLY L. SETZER, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, [1]Defendant.

          ORDER

          Richard L. Voorhees United States District Judge.

         THIS 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.

         I. BACKGROUND

         The 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.

         II. DISCUSSION

         A. Standards of Review

         1. Standards Governing Court Review of Commissioner's Final Decision

         Pursuant 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.

         While 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 Cir. 1988).

         “In 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 law.

         2. Standard Governing Review of Objections to M&R

         To 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).

         B. Plaintiff's Past Relevant Work & Occupation

         At Step 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 ...


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