Opinion
C/A No. 0:15-5091-JMC-PJG
07-19-2017
David Roy Hill, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is again before the court pursuant to the Order of the Honorable J. Michelle Childs, United States District Judge, recommitting this matter to the assigned magistrate judge for further consideration in light of the decision of the United States Court of Appeals for the Fourth Circuit in Lewis v. Berryhill, 858 F.3d 858 (4th Cir. 2017), issued after the assigned magistrate judge's Report and Recommendation. Based on the Lewis decision and Judge Childs's Order, the court recommends that this matter be remanded to the Commissioner for further proceedings.
In her Order, Judge Childs observed that the ALJ in this case appears to have made several of the same errors identified by the Fourth Circuit in Lewis. (Order, ECF No. 29 at 7-12.) For example, she stated, "The Fourth Circuit's criticism of the ALJ's analysis ["cherrypicking"] with regard to the treatment note at issue in Lewis could easily parallel some of Plaintiff's criticisms in the instant case." (Id. at 12.) She further observed the Lewis Court's command that an ALJ's reliance on treatment notes to find that a plaintiff's claims are inconsistent with the results of objective medical examinations must be accompanied by an explanation of how those results are inconsistent with the claims and noted that, in this case, the plaintiff argues that such an explanation was lacking. (Order, ECF No. 29 at 10, 12.)
Based on the two new principles established by the Lewis case as identified by Judge Childs, it appears that the ALJ's analysis in this case has been rendered legally insufficient. (See Order, ECF No. 29.) The court therefore recommends that this case be remanded to the Commissioner for further analysis of the plaintiff's residual functional capacity in light of the Lewis decision and Judge Childs's Order. July 19, 2017
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed 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 v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).