United States District Court, E.D. North Carolina, Western Division
MARCI G. PAMPUCH, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
C. DEVER III Chief United States District Judge
January 29, 2018, Magistrate Judge Numbers issued a
Memorandum and Recommendation ("M&R") and
recommended that plaintiff s motion for judgment on the
pleadings be granted [D.E. 20], defendant's motion for
judgment on the pleadings be denied [D.E. 22], and
defendant's final decision denying the request for
benefits be remanded to the Commissioner. See [D.E. 25]. On
February 12, 2018, defendant filed objections to the M&R
[D.E. 26]. Plaintiff did not respond.
Federal Magistrates Act requires a district court to make a
de novo determination of those portions of the magistrate
judge's report or specified proposed findings or
recommendations to which objection is made." Diamond
v. Colonial Life & Accident Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005) (alteration, emphasis, and quotation
omitted); see 28 U.S.C. § 636(b). Absent a timely
objection, "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. 416 F.3d at 315
court has reviewed the M&R, the record, and
defendant's objections. As for those portions of the
M&R to which nobody objected, the court is satisfied that
there is no clear error on the face of the record.
court has reviewed de novo the portions of the M&R to
which defendant objected. The scope of judicial review of a
final decision regarding disability benefits under the Social
Security Act, 42 U.S.C. § 405(g), is limited to
determining whether substantial evidence supports the
Commissioner's factual findings and whether the
Commissioner applied the correct legal standards.
See. e.g., Reid v. Comm'r of Soc.
Sec., 769 F.3d 861, 865 (4th Cir. 2014); Walls v.
Barnhart, 296 F.3d 287, 290 (4th Cir. 2002); Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
Substantial evidence is evidence which a reasonable mind
"might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quotation omitted). It "consists of more than a mere
scintilla of evidence but may be less than a
preponderance." Smith v. Chater. 99 F.3d 635,
638 (4th Cir. 1996). This court may not reweigh the evidence
or substitute its judgment for that of the Commissioner.
See. e.g., Walls. 296 F.3d at 290: Hays.
907 F.2d at 1456. Rather, in determining whether substantial
evidence supports the Commissioner's decision, the
court's review is limited to whether the Commissioner
analyzed the relevant evidence and sufficiently explained her
findings and rationale concerning the evidence. See,
e.g., Sterling Smokeless Coal Co. v. Akers.
131 F.3d 438, 439-40 (4th Cir. 1997).
objects and argues that the ALJ was not required to apply the
"special technique" in 20 C.F.R. § 404.1520a
to evaluate plaintiffs medically-determinable mental
impairment because plaintiff had no medically-determinable
mental impairment. See [D.E. 26] 3-5. The special technique
entails rating the degree of a claimant's functional
limitation in four broad areas: (1) activities of daily
living; (2) social functioning; (3) concentration,
persistence or pace; and (4) episodes of decomposition. See
20 C.F.R. § 404.1520a(c)(3). The functional areas are
rated on a five-point scale: none, mild, moderate, marked,
and extreme. Id. § 404.1 520a(c)(4). "The
last point on the scale represents a degree of limitation
that is incompatible with the ability to do any gainful
to the defendant's argument that plaintiff had no
medically-determinable mental impairment, the ALJ found that
plaintiff had a medically-determinable mental impairment
(i.e., depression), albeit one that is "non-severe"
and that "does not cause more than minimal limitations
in her ability to perform work-related activities." See
Tr. at 13. The ALJ also noted that "[a]lthough
depression was classified as a severe impairment in the
disability determinations, the claimant never mentioned
suffering from it during her hearing and she had no medical
records to indicate that she had ever received any type of
mental health treatment." Id. at
the government argues that the ALJ was not required to
evaluate the "severity" of plaintiff's
"non-severe" medically-determinable mental
impairment. See [D.E. 26] 5-6. The court rejects this
argument. The ALJ must apply the special technique to
evaluate a plaintiffs medically determinable mental
impairment, even when the mental impairment is non-severe.
See, e.g., Patterson v. Comm'r of Soc. Sec.
Admin., 846F.3d656, 659 (4thCir. 2017); Vinson v.
Colvin, No. 6:15-cv-06006(MAT), 2015 WL 8482783, at *4
(W.D.N.Y. Dec. 9, 2015) (unpublished); Guthrie v. Covlin,
No. 4:13-CV-57-FL, 2014 WL2575318, at *14 (E.D. N.C.
June 9, 2014) (unpublished); Vanley v. Astrue, No.
2:12-CV-00791 CKD, 2013 WL 3061268, at *3 (E.D. Cal. June 17,
2013) (unpublished); 20 C.F .R. § 404.1520a. After all,
the ALJ is supposed to apply the special technique to
determine the severity of a mental impairment once the ALJ
determines that the plaintiff has a medically-determinable
mental impairment. See, e.g., Sanchez v. Benyhill,
No. 6:17-cv-00535- Orl-40JRK, 2018 WL 910449, at *4 (M.D.
Fla. Jan. 30, 2018) (unpublished), report and recommendation
adopted by. 2018 WL 889036 (M.D. Fla. Feb. 14, 2018)
(unpublished); Acero v. Colvin, No.
EP-12-CV-502-RFC, 2015 WL 1931716, at *3 (W.D. Tex. Apr.
27, 2015) (unpublished); Moore v. Astrue, No.
3:10-CV-0709 (CFD)(TPS), 2010 WL 4976756, at *4 (D.
Conn. Dec. 2, 2010) (unpublished) ("The ALJ found that
[plaintiff's] mental impairments were medically
determinable. However, without [applying the special
technique], the ALJ found that the mental impairments were
not severe. This is error." (citations omitted)). Thus,
the ALJ should not have determined that plaintiff's
depression was non-severe without applying the special
technique. See, e.g., Patterson, 846 F.3d at 659;
Sanchez, 2018 WL 910449, at *4; Vinson, 2015 WL
8482783, at *4. Accordingly, because the ALJ found that
plaintiff had a medically-determinable mental impairment,
albeit a non-severe one, the ALJ should have applied the
special technique. See, e.g., Vanley, 2013 WL
3061268, at *3; Moore, 2010 WL 4976756, at *4.
defendant argues that, even if the ALT should have applied
the "special technique, " the AU's failure to
do so was harmless error. An error is harmless where the
decision "is overwhelmingly supported by the
record." Bishop v. Comm'r of Soc. Sec., 583
Fed.Appx. 65, 67 (4th Cir. 2014) (per curiam) (unpublished);
Pepper v. Colvin. 712 F.3d 351, 366-67 (7th Cir.
2013) (holding that the ALJ's failure to apply the
special technique in 20 C.F.R. § 4O4.l52Oa(c) concerning
claimant's depression was harmless error); Armijo v.
Astrue. 385 Fed.Appx. 789, 792-93 (10th Cir. 2010)
(unpublished) (same). An ALJ's failure to apply the
special technique may be harmless error in some cases.
See, e.g., Patterson. 846 F.3d at 662
(holding that the failure to use the special technique may be
harmless in some cases); Pepper. 712 F.3d at 366-67;
Armijo. 385 Fed.Appx. at 792-93. Here, the record
overwhelmingly supports the ALJ's conclusion that
plaintiffs depression was non-severe. See M&R at 9 n.3.
Moreover, nothing in the record suggests that the ALT would
have reached a different conclusion had the ALJ applied the
special technique. Indeed, it is "commendable that the
ALJ even took note of [plaintiff's] depression."
Armijo, 385 Fed.Appx. at 792. Although the record
contains a few fleeting references to anxiety and depression,
see, e.g., Tr. at 310, 428, 518, plaintiff offered
no evidence to show that her depression would cause anything
more than minimal limitations. See M&R at 9 n.3.
In fact, plaintiff did not list any mental impairment in her
disability application or any medication taken for mental
health conditions. See Tr. at 188, 191. At the
reconsideration level, plaintiff was asked about issues with
anxiety and depression. See Id. at 79. Plaintiff
responded by noting that she had some anxiety and depression
following her 2007 injury, that she was prescribed medication
at the time, and that she stopped taking the medication and
did not try any other medications. See Id. Moreover,
plaintiff denied having any current mental health symptoms.
See Id. Significantly, during her hearing,
plaintiff failed to mention anxiety or depression. After
testifying and describing several of her physical
limitations, plaintiffs attorney asked her if she had any
other medical conditions that impacted her ability to work.
See Id. at 51. Plaintiff responded: "Not that I
can think of." Id.
plaintiffs complete failure to offer any evidence concerning
her depression and the negligible references to depression in
the record, no reasonable administrative factfinder applying
the special technique could have found that plaintiffs
depression caused more than minimal limitations in
her ability to work. See, e.g., Pepper. 712
F.3d at 366-67; Armijo. 385 Fed.Appx. at 793;
Acero, 2015 WL 1931716, at *5; Guthrie,
2014 WL 2575318, at *14; Vanley, 2013 WL 3061268, at
*6. Accordingly, the ALJ's failure to apply the special
technique in 20 C.F.R. § 404.1520a was harmless error.
the court DECLINES to adopt the M&R in part, SUSTAINS in
part defendant's objections to the M&R [D.E. 26],
DENIES plaintiffs motion for judgment on the pleadings [D.E.
20], and GRANTS defendant's motion for judgment on the
pleadings [D.E. 22]. The clerk shall close the case.