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Lamb v. Berryhill

United States District Court, E.D. North Carolina, Southern Division

November 16, 2017

TONYA MICHELLE LAMB, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.

         This 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.

         BACKGROUND

         On 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].

         On 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].

         On 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].

         On 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].

         On July 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.

         LEGAL FRAMEWORK

         A 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).[1]

         DISCUSSION

         For 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).

         Defendant 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.

         The 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 ...


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