United States District Court, D. South Carolina, Orangeburg Division
PATRICK MICHAEL DUFFY United States District Judge
matter is before the Court on Plaintiff Gary Wheeler's
objections to United States Magistrate Judge Kaymani D.
West's report and recommendation (“R &
R”) (ECF Nos. 28 & 23). The Magistrate Judge
recommends that the Commissioner's decision be affirmed.
For the reasons stated herein, the Court sustains
Wheeler's first objection, does not adopt the R & R,
vacates the ALJ's decision, and remands to the
Commissioner for further proceedings consistent with this
Magistrate Judge makes only a recommendation to this Court.
The R & R has no presumptive weight, and the
responsibility for making a final determination remains with
the Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). Parties may make written objections to the Magistrate
Judge's recommendations and proposed findings within
fourteen days after being served with a copy of the R &
R. 28 U.S.C. § 636(b)(1). This Court must conduct a de
novo review of any portion of the R & R to which a
specific objection is made, and the Court may accept, reject,
or modify the Magistrate Judge's findings and
recommendations in whole or in part. Id.
Additionally, the Court may recommit the matter to the
Magistrate Judge with instructions. Id. A
party's failure to object is taken as the party's
agreement with the Magistrate Judge's conclusions.
See Thomas v. Arn, 474 U.S. 140, 151-52 (1985).
Absent a timely, specific objection-or as to those portions
of the R & R to which no specific objection is made- this
Court “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
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed.R.Civ.P. 72 advisory committee's
raises three objections to the R & R. Because the
resolution of Wheeler's first objection could be
dispositive, the Court only addresses that objection at this
time. Wheeler argues that the Magistrate Judge erred in her
analysis of the ALJ's decision because substantial
evidence does not support the ALJ's decision not to
incorporate Wheeler's need to use a cane at all times
while bending and stooping into Wheeler's residual
functional capacity (“RFC”). In support of that
argument, Wheeler claims that the ALJ did not give proper
consideration to his treating physician's opinion and to
the vocational expert's opinion.
in this case determined that Wheeler:
has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except the claimant is limited
to frequent use of his right upper extremity (dominant) for
pushing/pulling. The claimant is limited to standing/walking
for 2 hours and requires use of a cane for
ambulation. The claimant must never climb ladders,
ropes, or scaffolds, and never crawl. He is further limited
to occasionally climbing ramps and stairs, balancing,
kneeling, stooping and crouching. The claimant must avoid
concentrated exposure to temperature extremes, humidity, and
(Social Security Admin. R., ECF No. 9-2, at 37 (emphasis
added).) In determining Wheeler's RFC, the ALJ gave
significant weight to Dr. Graves' medical opinions.
However, the ALJ did not incorporate Dr. Graves' finding
that Wheeler required the use of a cane at all times for
walking or for bending and stooping. (See Social
Security Admin. R., ECF No. 9-11, at 44.) The ALJ's
failure to incorporate that limitation into the RFC was
significant because, according to the vocational expert who
testified at Wheeler's hearing, if Wheeler had to use a
cane “for walking or moving around all the time then it
can eliminate all the jobs.” (See Social
Security Admin. R., ECF No. 9-2, at 73.)
well settled that the RFC determination is a legal conclusion
left for the ALJ. See 20 C.F.R. §
404.1527(d)(2). Thus, the ALJ can give weight to some medical
evidence, while disregarding other medical evidence, when
determining a claimant's RFC. See Bacnik v.
Colvin, No. 1:12-CV-801, 2014 WL 3547387, at *4 n.7
(M.D. N.C. July 17, 2014). However, “‘a necessary
predicate to engaging in a substantial evidence review is a
record of the basis for the ALJ's ruling, ' including
‘a discussion of which evidence the ALJ found credible
and why, and specific application of the pertinent legal
requirements to the record evidence.'” Monroe
v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting
Radford v. Colvin, 734 F.3d 288, 295 (4th Cir.
2013)). Thus, the ALJ must “‘build an accurate
and logical bridge from the evidence to his
conclusion.'” Id. (quoting Clifford v.
Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
Magistrate Judge appears to recognize that the ALJ might not
have adequately explained why she did not include Dr.
Graves' bending and stooping limitation in Wheeler's
RFC. Although the Magistrate Judge recommends that the Court
should conclude that the ALJ gave proper consideration to Dr.
Graves' opinion and the vocational expert's opinion,
she alternatively recommends that the Court consider the
ALJ's failure to explain that omission as harmless error
because the ALJ did limit Wheeler to occasional stooping in
his RFC. Moreover, the Magistrate Judge states that Wheeler
has not explained how incorporating the use of a cane at all
times while bending and stooping would make a difference in
the ALJ's RFC determination.
Court respectfully disagrees because the RFC's stooping
limitation does not include the required use of a cane at all
times while stooping. The ALJ failed to explain why she
determined that Wheeler required the use of a cane to
ambulate, but did not require the use of a cane at all times
for bending and stooping as specified by Dr.
Graves. As a result, the Court is unable to determine whether
the ALJ's decision not to incorporate the “use of a
cane at all times while bending and stooping”
limitation into Wheeler's RFC was supported by
substantial evidence. This inclines the Court to remand to
the Commissioner for further explanation of whether or not
Wheeler's RFC should reflect Dr. Graves' opinion that
Wheeler requires the use of a cane at all times for walking
or for bending and stooping. See 42
U.S.C. § 405(g).
argues that the Court should not remand the case but instead
award benefits. Such an award would be premature because it
remains unclear whether Wheeler's RFC should incorporate
Dr. Graves' opinion as to use of a cane while bending and
stooping. If the ALJ determines that the RFC should include
such a limitation, the ALJ must then pose a revised
hypothetical to a vocational expert. The only question before