United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
matter is before the court on the Order and Memorandum
Recommendation ("M&R") United States Magistrate
Judge James E. Gates pursuant to 28 U.S.C. §
636(b)(1)(C) and Fed.R.Civ.P. 72(b). For the following
reasons, the Court adopts the M&R.
January 5, 2012, plaintiff filed applications for disability
insurance benefits ("DIB") under Title II of the
Social Security Act ("Act") and supplemental
security income ("SSI") benefits under Title XVI of
the Act. [Tr. 252]. Plaintiff alleged a disability onset date
of September 4, 2009. Id. Plaintiffs applications
were denied initially and upon reconsideration. [Tr. 273-99].
February 22, 2013, an administrative law judge
("ALJ") held a video conference to consider
plaintiffs claims de novo. [Tr. 132-66]. On March
29, 2013, the ALJ issued a decision denying plaintiffs
claims, and finding that, as a matter of law, she was not
disabled from September 4, 2009, to the date of that
decision. [Tr. 252-62]. Plaintiff requested review by the
Appeals Council. [Tr. 366-67]. On June 17, 2014, the Appeals
Council entered an order remanding the case for further
administrative proceedings. [Tr. 269-72].
April 15, 2015, plaintiff received another hearing before the
ALJ. [Tr. 167-90]. On June 15, 2015, the ALJ again determined
that plaintiff was not disabled under the Act. [Tr. 103-20].
On September 23, 2016, the Appeals Council denied plaintiffs
request for review, and the ALJ's decision became the
Commissioner's final decision. [Tr. 1-7].
November 29, 2016, plaintiff, now pro se, filed a
motion to proceed in this court in forma
pauperis. [D.E. 1]. This motion was granted. [D.E. 5].
Plaintiff filed an action seeking judicial review of the
Commissioner's final decision pursuant to 42 U.S.C.
§§ 405(g), 1383(c)(3). [D.E. 6]. The parties filed
cross-motions for judgment on the pleadings. [D.E. 21, 27].
18, 2017, the court referred the pending cross-motions to
Magistrate Judge Gates for entry of an M&R pursuant to 28
U.S.C. § 636(b). See [D.E. 29, 30]. On October
10, 2017, Magistrate Judge Gates issued an M&R
recommending that: plaintiffs motion for judgment on the
pleadings be allowed; defendant's motion for judgment on
the pleadings be denied; and that the case be remanded to the
Commissioner. [D.E. 31]. On October 18, 2017, defendant
timely filed objections to the M&R. [D.E. 32]. The court
now reviews defendant's objections.
district court is required to review de novo those
portions of an M&R to which a party timely files specific
objections or where there is plain error. 28 U.S.C. §
636(b)(1); Thomas v. Am, 474 U.S. 140, 149-50
(1985); cf. Diamond v. Colonial Life & Ace. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) ("[I]n the
absence of a timely filed objection, a district court need
not conduct 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.") (internal
quotation and citation omitted).
those portions of the M&R to which defendant does not
object, the court is satisfied that there is no clear error
on the face of the record. As to the portions of the M&R
to which defendant objects, the court conducts its review
de novo. See 28 U.S.C. § 636(b)(1).
first objects to the M&R's recommendation that the
case be remanded in order to discuss what limitations
resulted from plaintiffs moderate difficulty in
concentration, persistence, or pace ("CPP").
See [D.E. 32] at 4. Defendant specifically asserts
that the M&R incorrectly applied the holding of
Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015).
Id. Although defendant acknowledges that
Mascio requires an ALJ to discuss whether a
claimant's limitation in CPP precludes work, defendant
asserts that the M&R was incorrect when it
"indicated" that an ALJ's limitation of a
claimant's Residual Function Capacity ("RFC")
to simple, routine, and repetitive tasks could not satisfy
Mascio. Id. at 5. Defendant urges: "when
medical evidence demonstrates that a claimant can engage in
simple routine tasks or unskilled work despite limitations in
concentration, persistence, and pace, courts have concluded
that limiting the hypothetical to include only unskilled work
sufficiently accounts for such limitation." Id.
(quoting Winschel v. Comisisoner of Social Security,
631 F.3d 1176, 1180 (11th Cir. 2011)). Defendant further
asserts that this case is distinguishable from
Mascio because the ALJ did discuss
plaintiffs moderate limitation in CPP but nevertheless found
that she was capable of work. Id. at 6.
court rejects this argument. In Mascio, the Fourth
Circuit found that an ALJ's RFC decision was erroneous
because, among other things, the ALJ "ignor[ed] (without
explanation) Mascio's moderate limitation in her ability
to maintain her concentration persistence or pace."
Mascio, 780 F.3d at 633. Further, the Fourth Circuit
found that because "the ability to perform simple tasks
differs from the ability to stay on task, " an ALJ does
not "account for a claimant's limitations in
concentration, persistence, and pace by restricting the