United States District Court, W.D. North Carolina, Statesville Division
JOSEPH E. NEPTUNE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.
J. Conrad, Jr. United States District Judge
MATTER comes before the Court on Plaintiff's
Motion for Summary Judgment and Memorandum in Support, (Doc.
Nos. 11, 12); Defendant's Motion for Summary Judgment and
Memorandum in Support (Doc. Nos. 18, 19); the Magistrate
Judge's Memorandum and Recommendation
(“M&R”), (Doc. No. 20), recommending that
this Court grant the Plaintiff's Motion and deny the
Defendant's Motion; Defendant's Objection to the
Magistrate's M&R, (Doc. No. 21); and Plaintiff's
Response to Defendant's Objection, (Doc. No. 22).
party has objected to the Magistrate Judge's statement of
the factual and procedural background of this case. Thus, the
Court adopts the facts as set forth in the M&R.
STANDARD OF REVIEW
district court may assign dispositive pretrial matters
pending before the court to a magistrate judge for
“proposed findings of fact and recommendations.”
28 U.S.C. §636(b)(1)(B). The Federal Magistrate Act
provides that “a district court shall make a de novo
determination of those portions of the report or specific
proposed findings or recommendations to which objection is
made. Id. at §636(b)(1)(C); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir. 1983). Under Rule
72(b) of the Federal rules of Civil Procedure, a district
court judge shall make a de novo determination of any portion
of an M&R to specific written objection has been made.
Fed.R.Civ.P. 72(b). However, “when objections to
strictly legal issues are raised and no factual issues are
challenged, de novo review of the record may be dispensed
with.” Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982). Similarly, when no objection is filed,
“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
& Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72, advisory committee note).
Social Security Act, 42 U.S.C. §§ 405(g),
1383(c)(3), limits this Court's review of a final
decision of the Commissioner to determining: (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, Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990). The District Court does not
review a final decision of the Commissioner de novo.
Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986); King v. Califano, 599 F.2d 597, 599 (4th Cir.
1979). The Social Security Act provides: “The findings
of the [Commissioner] as to any fact, if supported by
substantial evidence, shall be conclusive.” 42 U.S.C.
§ 405(g). In Smith v. Heckler, the Fourth
Circuit noted that “substantial evidence” is
“more than a scintilla and must do more than create a
suspicion of the existence of a fact to be established. It
means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” 782 F.2d
1176, 1179 (4th Cir. 1986) (quoting Perales, 402
U.S. at 401).
Fourth Circuit has long emphasized that it is not appropriate
for a reviewing court to weigh the evidence anew, or to
substitute its judgment for that of the Commissioner, if the
Commissioner's final decision is supported by substantial
evidence. Hays, 907 F.2d at 1456; see also
Smith, 795 F.2d at 345. Indeed, this is true even if
the reviewing court disagrees with the outcome. Provided
there is “substantial evidence” in the record to
support the final decision below, the Court will uphold the
final decision. Lester v. Schweiker, 683 F.2d 838,
841 (4th Cir. 1982).
objects to the Magistrate Judge's finding that the
Administrative Law Judge (“ALJ”) improperly
assessed Plaintiff's Residual Functional Capacity
(“RFC”) and that this case must be remanded
pursuant to Mascio v. Colvin, 78 F.3d 632 (4th Cir.
2015). Specifically, Defendant contends that the Magistrate
Judge misapplied the Mascio holding and incorrectly
found that the ALJ gave no explanation of why he did not
include Plaintiff's moderate limitations in
concentration, persistence, or pace in the RFC.
is solely responsible for assessing a claimant's RFC. 20
C.F.R. §§ 404.1546(c) and 416.946(c). In making
that assessment, the ALJ must consider the functional
limitations resulting from the claimant's medically
determinable impairments. SSR 96-8p. The ALJ must also
“include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical
facts and nonmedical evidence.” Id. In
Mascio, the Fourth Circuit held that “remand
may be appropriate . . . where an ALJ fails to assess a
claimant's capacity to perform relevant functions,
despite contradictory evidence in the record, or where other
inadequacies in the ALJ's analysis frustrate meaningful
review.” Mascio, 780 F.3d at 636 (quoting
Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir.
2013)). The Fourth Circuit also found that “an ALJ does
not account for a claimant's limitations in
concentration, persistence, or pace by restricting the
hypothetical question to simple routine tasks, or unskilled
arguments presented in Defendant's Objection to the
Magistrate Judge's M&R are merely sections of
Defendant's Memorandum of Law in Support of the
Commissioner's Motion for Summary Judgment. In both
documents, Defendant argues that the ALJ properly determined
Plaintiff's RFC, specifically regarding his mental
impairments and gave sufficient explanation for the RFC. The
Magistrate Judge already addressed this argument, and the
Court agrees with his analysis and conclusion. The ALJ may
find that a moderate limitation in concentration, persistence
or pace exists but does not apply in his residual functional
capacity as long as an explanation the ALJ explains why
that's the case. See Mascio, 780 F.3d at 638.
(“Perhaps the ALJ can explain why [Plaintiff's]
moderate limitation in concentration, persistence, or pace at
step three does not translate into a limitation in
[Plaintiff's] residual functional capacity. . . . But
because the ALJ here gave no explanation, a remand is in
order.”). The ALJ did not show his work in this
instance-he noted the moderate limitations in concentration,
persistence or pace at step three, but did not explain how,
if at all, they factored into the RFC.
argues that the ALJ did provide an explanation unlike in the
ALJ in Mascio. (Doc. No. 19 at 6). Defendant points
to the ALJ's thorough discussions of certain medical and
opinion evidence as it related to Plaintiff's RFC. (Doc.
No. 19 at 7-8; Doc. No. 21 at 2-3). The Court acknowledges
the ALJ's discussion of Plaintiff's mental RFC, but
the ALJ did not connect the dots in the way that
Mascio requires. Nowhere does the ALJ mention
concentration, persistence, or pace in his RFC discussion.
The Court is left to wonder whether the ALJ factored
Plaintiff's moderate limitations in concentration,
persistence, or pace into his RFC determination. Defendant
also notes limitations in Plaintiff's RFC, namely that
Plaintiff be limited to: simple, routine, repetitive tasks of
unskilled work; no constant changes in routine; no complex
decision making; and no crisis situations. (Doc. No. 19 at
6-7; Doc. No. 21 at 3-4). Similar to the discussion of
medical evidence, these accommodations alone are not enough.
Perhaps these limitations were intended to accommodate
Plaintiff's moderate limitations in concentration,
persistence or pace, but the Court cannot discern that absent
an explanation from the ALJ, which was not present here.
Mascio requires this explanation.
this matter will be remanded to the ALJ. Upon remand, the ALJ
shall conduct a new hearing, take any action needed to
complete the administrative record, and issue a new decision.
The ALJ will be directed specifically to: (1) consider
further Plaintiffs residual functional capacity in light of
limitations, and (2) address Plaintiffs limitations in
concentration, persistence, or ...