United States District Court, W.D. North Carolina, Charlotte Division
BERNADETTE C. MOHAMED, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
Cogburn Jr. United States District Judge
MATTER is before the court on plaintiff's
Objections (#16) to the Memorandum and Recommendation of
Honorable Dennis L. Howell, United States Magistrate Judge.
In the Memorandum and Recommendation, the magistrate judge
advised the parties of the right to file objections within 14
days, all in accordance with 28 U.S.C. § 636(b)(1)(c).
The plaintiff has filed objections within the time allowed.
Federal Magistrates Act of 1979, as amended,
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.” 28 U.S.C. § 636(b)(1);
Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).
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, de novo review is not required by the
statute “when a party makes general or conclusory
objections that do not direct the court to a specific error
in the magistrate judge's proposed findings and
recommendations.” Id. Moreover, the statute
does not on its face require any review at all of issues that
are not the subject of an objection. Thomas v. Arn,
474 U.S. 140, 149 (1985); Camby v. Davis, 718 F.2d
at 200. Nonetheless, a district judge is responsible for the
final determination and outcome of the case, and accordingly
the court has carefully reviewed the magistrate judge's
to Magistrate Judge Howell's Memorandum and
Recommendation (#15), plaintiff timely filed her objections
(#16). Specifically, plaintiff raises two objections, to wit,
that the ALJ failed to properly and fully assess
plaintiff's mental residual functional capacity
(“RFC”) and that the ALJ did not properly explain
the effect of plaintiff's diarrhea on her RFC.
The ALJ's assessment of plaintiff's mental RFC
argues that the ALJ failed to properly assess plaintiff's
mental RFC, contending that the ALJ's failure to assess
plaintiff's ability to stay on task fatally damages the
ALJ's assessment of plaintiff's mental RFC, as the
ability to stay on task is closely correlated with
limitations in concentration, persistence, and pace. As a
result, plaintiff argues that remand is required. Plaintiff
cites Mascio v. Colvin, 780 F.3d 632 (4th
Cir. 2015) for this proposition, where the Fourth Circuit
Court of Appeals held that “only the ability to stay on
task” can “account for a claimant's
limitation in concentration, persistence, or pace.”
Mascio, 780 F.3d at 638. However, the
Mascio decision focused on a claimant with moderate
limitations in concentration, persistence, or pace.
Id.; see also Roberson v. Colvin, 2016 WL
5844148, at *6 (W.D. N.C. Oct. 4, 2016) (“First, this
case is distinguishable from Mascio, which dealt
with a finding of ‘moderate' limitation, not mild
limitations as Plaintiff suffers here.”).
the ALJ explicitly noted that plaintiff had only
“mild” limitations in concentration, persistence,
and pace, as part of her overall analysis of plaintiff's
mental RFC and her findings that plaintiff's mental
impairment is non-severe. (Tr. 20). Thus, Mascio
does not control. Nevertheless, the ALJ took plaintiff's
mild limitations into account when she considered
plaintiff's depression and alleged memory loss, finding
that such limitations were outweighed by evidence in the
record of plaintiff's ability to carry out activities of
daily living, including performing household chores and
concentrating on television programs. (Tr. 21-22).
careful review, the court concludes that the ALJ adequately
discussed her findings and cited to the substantial evidence
which informed her conclusions. As discussed, explicit
analysis of the ability to stay on task is not necessary
where the challenged limitations are determined to be mild
and they are otherwise included in the RFC assessment. As a
result, the court will overrule the objection and affirm the
magistrate judge's findings.
The ALJ's assessment of plaintiff's diarrhea and its
effects on her RFC
second objection focuses on the ALJ's supposedly sparse
analysis of plaintiff's chronic diarrhea in assessing
plaintiff's RFC. Plaintiff objects to the magistrate
judge's recommendation, arguing that the ALJ had before
her a wealth of evidence in the record of plaintiff's
diarrhea, and in barely discussing it, the ALJ did not
properly assess plaintiff's RFC.
magistrate judge's task was not to re-weigh the evidence
presented to the ALJ, but to determine whether the ALJ's
findings were supported by substantial evidence. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
Generally, failure to consider an entire line of evidence
falls well below the minimal level of articulation required.
Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995).
However, an ALJ is not tasked with the “impossible
burden of mentioning every piece of evidence” that may
be placed into the Administrative Record. Phipps v.
Colvin, No. 3:13-CV-00315-MOC, 2014 WL 31798, at *2
(W.D. N.C. Jan. 6, 2014).
of the ALJ's decision reveals that she did not neglect an
entire line of evidence and did indeed account for it in
assessing plaintiff's RFC. Specifically, the ALJ found
that “[a]lthough the record contains multiple notations
that the claimant has complained of intermittent bouts of
diarrhea and abdominal pain related to malabsorption
subsequent to the gastric bypass procedure, there is no
longitudinal treatment record to confirm the symptoms.”
(Tr. 23). In arguing that such analysis was sparse, plaintiff
takes issue with the analysis quantitatively; however, such