United States District Court, D. South Carolina, Beaufort Division
ORDER AND OPINION
Mark Anthony Wilkes (“Plaintiff”) filed this
action seeking judicial review of the final decision of the
Commissioner of the Social Security Administration (the
“Commissioner”) pursuant to 42 U.S.C. §
405(g). (ECF No. 1.) This matter is before the court for
review of the Report and Recommendation of United States
Magistrate Judge Bristow Marchant, issued in accordance with
28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(a)
D.S.C. (ECF No. 14).
Magistrate Judge recommended affirming the Commissioner's
final decision denying Plaintiff's claim for Disability
Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”). (Id. at 29.)
Plaintiff timely filed objections to the Magistrate
Judge's recommendation. (ECF No. 16.) For the reasons set
forth below, the court ACCEPTS the recommendation of the
Magistrate Judge and AFFIRMS the Commissioner's final
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
thorough recitation of the relevant factual and procedural
background of this matter is discussed in the Report and
Recommendation. (See ECF No. 14.) The court
concludes, upon its own careful review of the record, that
the Magistrate Judge's factual and procedural summation
is accurate and incorporates it by reference. The court will
only reference herein facts pertinent to the analysis of
was born on March 20, 1969, and is presently 47 years old.
(ECF No. 10-5 at 4.) On May 15, 2012, Plaintiff filed an
application for DIB and SSI, alleging a disability onset date
of September 28, 2011, due to vertigo, foot problems, vision
problems, hearing problems, and a learning disability.
(Id. at 4, 11; ECF No. 10-3 at 32-33.)
Plaintiff's claim was denied on August 2, 2012 and again
on reconsideration on January 28, 2013. (ECF No. 10-4 at
15-18, 149-56.) On May 6, 2014, Plaintiff had a hearing
before an Administrative Law Judge (“ALJ”), who
found on August 7, 2014, that Plaintiff was not disabled
under §§ 216(i), 223(d), and 1614(a)(3)(A) of the
Social Security Act. (ECF No. 10-2 at 31, 38.) Thereafter,
the Appeals Council denied Plaintiff's request for review
on August 6, 2013, making the ALJ's decision the final
decision of the Commissioner for purposes of judicial review.
(Id. at 2.)
on February 4, 2014, Plaintiff commenced this action in the
United States District Court for the District of South
Carolina pursuant to 42 U.S.C. § 405(g) to obtain
judicial review of the Commissioner's final decision
denying Plaintiff's claim for DIB and SSI. (ECF No. 1.)
On February 25, 2016, the Magistrate Judge issued his
recommendation that the Commissioner's final decision
denying Plaintiff's claim for DIB and SSI be affirmed.
(ECF No. 14.) In the Report and Recommendation, the
Magistrate Judge determined, among other things, (1) that the
ALJ did not erroneously construe or characterize the evidence
by finding that Plaintiff's non-work activities supported
a determination that Plaintiff could work; (2) that the ALJ
did not err in concluding that Plaintiff failed to meet the
criteria for disabilities in Listings 12.02 and
12.05; and (3) that substantial evidence
supported the ALJ's finding that Plaintiff's
statements concerning the intensity, persistence, and
limiting effects of his alleged symptoms were not entirely
timely filed his objections to the Magistrate Judge's
recommendation on March 14, 2016, listing three objections.
(ECF No. 16.) The Commissioner filed a response to
Plaintiff's objections on March 28, 2016. (ECF No. 17.)
LEGAL STANDARD AND ANALYSIS
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with
this court. See Mathews v. Weber, 423 U.S. 261,
270-71 (1976). The court reviews de novo only those
portions of a Magistrate Judge's Report and
Recommendation to which specific objections are filed, and
reviews those portions which are not objected to-including
those portions to which only “general and
conclusory” objections have been made-for clear error.
Diamond v. Colonial Life & Acc. Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718
F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982). The court may accept,
reject, or modify, in whole or in part, the recommendation of
the Magistrate Judge or recommit the matter with
instructions. See 28 U.S.C. § 636(b)(1).
role of the federal judiciary in the administrative scheme
established by the Social Security Act is a limited one.
Section 405(g) of the Act provides, “the findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive . . .
.” 42 U.S.C. § 405(g). “Substantial evidence
has been defined innumerable times as more than a scintilla,
but less than a preponderance.” Thomas v.
Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This
standard precludes a de novo review of the factual
circumstances that substitutes the court's findings for
those of the Commissioner. See Vitek v. Finch, 438
F.2d 1157 (4th Cir. 1971). The court must uphold the
Commissioner's decision as long as it is supported by
substantial evidence. See Blalock v. Richardson, 483
F.2d 773, 775 (4th Cir. 1972). “From this it does not
follow, however, that the findings of the administrative
agency are to be mechanically accepted. The statutorily
granted right of review contemplates more than an uncritical
rubber stamping of the administrative agency.”
Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969).
“[T]he courts must not abdicate their responsibility to
give careful scrutiny to the whole record to assure that
there is a sound foundation for the [Commissioner's]
findings, and that this conclusion is rational.”
Vitek, 438 F.2d at 1157-58.
Construction and characterization of Plaintiff's
first objects that the ALJ and the Magistrate Judge
“have applied the wrong standard as to what constitutes
disability for purposes of Social Security.” (ECF No.
16 at 1.) He argues that the ALJ and the Magistrate Judge
incorrectly concluded that “any physical activity by
[Plaintiff] means that [Plaintiff] is exaggerating his
condition and that he is not disabled.” (Id.)
In support, he cites to a number of authorities for the
proposition that the ability to engage in some amount of
non-work, daily-living activities, without more, does not
disprove an alleged inability to work. See, e.g.,
Smith v. Califano, 637 F.2d 968, 971-72 (3d Cir.
1981) (“[S]poradic or transitory activity does not
disprove disability.”); O'Connor v.
Sullivan, 938 F.2d 70 (7th Cir. 1991) (concluding
district court erred by inquiring only whether plaintiff was
“so impaired . . . that he could no longer live on his
own” because “[t]he question is not whether one
can survive in a noninstitutional setting . . . but whether
one can work”).
Magistrate Judge aptly explained, the ALJ rejected
Plaintiff's disability claims in part because:
his symptoms were not entirely credible because they were
inconsistent with his activities, including holding a valid
driver's license, driving, reading and writing as
evidenced by the Function Report Plaintiff had completed,
reading the Bible, going grocery shopping, going out alone,
feeding and watering his dogs, caring for his personal
hygiene without assistance, counting change, attending church
services, walking half a mile, spending time outside with his
children, playing with his children during the day, caring
for his ailing relatives, caring for and feeding chickens,
taking his ...