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Hicks v. Colvin

United States District Court, N.D. Georgia, Atlanta Division

July 21, 2014

CAROLYN W. COLVIN, Acting Commissioner for Social Security, Defendant.[1]


JULIE E. CARNES, District Judge.

This case is before the Court on defendant Carolyn W. Colvin's objections [19] to the magistrate judge's Final Report and Recommendation ("R&R") [17]. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that the magistrate judge's R&R [17] should be REJECTED and the decision of the Commissioner should be AFFIRMED.


Plaintiff Carrie Regina Hicks is a fifty-three-year-old resident of Riverdale, Georgia. (Tr. [5] at 448.) A high school graduate who completed a six-month vocational training program, Hicks has worked as a cashier, stocker, front office cashier, and assistant customer service manager for various companies over the past fourteen years. ( Id. at 213, 215, 451-53.) In August of 2008, Hicks was fired from BrandsMart, her most recent place of employment, for "inflicting physical harm to another employee" after the two got into an altercation. ( Id. at 160, 242, 451, 454.) Hicks has not worked since being fired and claims that she is now incapable of doing so, based on the onset of her alleged disability on August 28, 2008. ( Id. at 448, 454.) Hicks claims that she is disabled because she has a major depressive disorder, anxiety, acid reflux, and fibroid tumors. ( Id. at 94.)

On a normal day since her last employment, Hicks sleeps in late (or gets up early-the record is contradictory), ensures her thirteen-year-old daughter is dressed and ready for school, sits on her bed, says prayers, thinks about her life, and watches TV or sits on the balcony. (Tr. [5] at 307, 455.) Hicks generally directs her own daily routine, makes meals for herself, does occasional household chores, and manages her own finances. ( Id. at 307.) While on some days she has no energy or motivation and does not take care of her hygiene or change her clothes, Hicks does "brush[] her teeth and shower[] or bathe[] regularly." ( Id. )

Although Hicks claims that she first began experiencing depression in early adulthood, most pertinent to this case is her claimed recent bout of depression, for which she received outpatient treatment at the Clayton Center from April 24, 2009 until roughly November 15, 2010. ( See, e.g., id. at 204-06, 212-16.) At the Clayton Center, Hicks participated in group counseling every two to three weeks, talked to individual counselors from time-to-time, and occasionally saw Dr. Ramesh Amin-a board-certified psychiatrist and her treating physician for purposes of this action-"for medication." ( See, e.g., id. at 204-81, 456.) Hicks takes Trazodone and Zoloft for her depression, though not always as prescribed because of alleged side effects. (Tr. [5] at 156, 417.)

Hicks claims that her depression precludes her from working because it causes memory problems such as "forgetting how to do paperwork, going to appointments on the incorrect day, and forgetting what she is doing while performing tasks." She further claims that the "[m]edication that [she] need[s]... makes [her] drowsy... [and] dizzy" and causes a loss of appetite, resulting in low energy. ( Id. at 308, 459.) For these reasons, Hicks applied for disability insurance benefits ("DIB") and supplemental security income ("SSI") on October 23, 2009. (Compl. [1] at ¶ 6.)

The SSA denied Hicks' claim initially and on reconsideration, after which she filed a timely appeal for a hearing. (Tr. [5] at 29-41.) The SSA granted Hicks' request, and an administrative law judge ("ALJ") held a hearing on August 3, 2011, though he too denied her claim for benefits after finding that she did not have a qualifying disability. ( Id. at 11-23, 443-65.) Similarly, the Appeals Council declined her request for review of the ALJ's decision on March 19, 2011. ( Id. at 6-8.) Plaintiff then appealed to this Court, where a magistrate judge reviewed her claim. (Compl. [1].)

The magistrate judge determined that the ALJ "erred in assigning greater weight to the non-examining, state agency consultants than to Appellant's treating psychiatrist." (R&R [17] at 27.) According to the magistrate judge, this error infected the ALJ's subsequent evaluation of Hicks' credibility, as well as the hypothetical question posed by the ALJ to the vocational expert ("VE"). Accordingly, the magistrate judge recommended that the ALJ's decision be reversed and remanded for the latter to reassess the record, the weight given to the agency doctors' opinions, the ALJ's credibility determination, and the hypothetical question posed to the VE. ( Id. at 36-37, 43, 46.) The Commissioner filed her objections to the R&R and Hicks has responded. The R&R, and subsequent briefing, are now before the Court.



Before addressing the substantive issues, this Court must first address Hicks' preliminary argument that the Commissioner's objections are untimely. (Resp. [20] at 1 n.1.) Objections to an R&R must be made within fourteen days of service. 28 U.S.C. § 636(b)(1) (2009). This timeframe, Hicks claims, required the Commissioner to file her objections to the magistrate judge's R&R by August 21, 2013; a deadline she missed by one day. However, Rule 6(d) adds three days to the window within which a party must file a required reply when service is made pursuant to Rule 5(b)(2)(B)-(E). FED R. CIV. P. 6(d) (2014). Service was of the R&R and accompanying order was so made, thereby allowing the Commissioner until August 26, 2013 to object. LR 5.1(A) N.D.Ga. (2009); FED. R. CIV. P. 6(a)(2)(C), (d). Consequently, the Commissioner's objections were timely. See Thomas v. Thomas, No. 1:06-CV-136(WLS), 2010 WL 883751, at *1 n.1 (M.D. Ga. Mar. 10, 2010)(Sands, J.).


Under the Social Security Act, a district court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g) (2010). Similarly, a district court may accept, reject, or modify, in whole or in part, the magistrate judge's recommended disposition, as stated in the R&R. 28 U.S.C. § 636(b)(1).

With respect to the Commissioner's determination, the Court's review is not a full-scale reexamination. The Court may not "decide facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner]." Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)(internal quotation and citation omitted)(quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)). Rather, the Court's role is limited to reviewing the record to determine whether "substantial evidence" supports the Commissioner's decision. Id. Substantial evidence is an intermediate standard requiring more than a scintilla of evidence, but less than a preponderance; it is "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id .; Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). If substantial evidence supports the Commissioner's determination, it is conclusive and the Court must affirm it, even if the proof preponderates against it. Dyer, 395 F.3d at 1210.


An ALJ evaluates a claimant's application for benefits according to a five-step process, as described in SSA regulations. 20 C.F.R. § ...

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