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Myers v. Berryhill

United States District Court, D. South Carolina

March 30, 2017

Latoyia Abrena Myers, Plaintiff,
Nancy A. Berryhill, Commissioner of Social Security, [1] Defendant.


          Bruce Howe Hendricks United States District Judge

         Plaintiff Latoyia Abrena Myers (“Plaintiff”) brought this action pursuant to 42 U.S.C. § 1383(c)(3) to obtain judicial review of a final decision of Defendant Commissioner of Social Security (“Commissioner”), denying her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rules 73.02(B)(2)(a) and 83.VII.02, D.S.C., this matter was referred to United States Magistrate Judge Kaymani D. West, for pretrial handling. On December 13, 2016, the Magistrate Judge issued a Report and Recommendation (“Report” or “R&R”) in which she determined that Plaintiff did not show that the Commissioner's decision was unsupported by substantial evidence or reached through application of an incorrect legal standard. Accordingly, the Magistrate Judge recommended affirming the Commissioner's decision. (ECF No. 27.) Plaintiff filed Objections on December 28, 2016 (ECF No. 29), and on January 11, 2017, the Commissioner filed a Reply (ECF No. 32). For the reasons stated below, the Court adopts the Report and affirms the Commissioner's decision.


         The Report and Recommendation sets forth in detail the relevant facts and standards of law on this matter, and the Court incorporates them and summarizes below in relevant part. Plaintiff was 30 years old on her amended alleged disability onset date of January 22, 2010. She completed one year of college and has past relevant work experience as a packer, cashier, and telephone collections agent.

         On August 30, 2010, Plaintiff filed an application for DIB and SSI benefits alleging a disability since October 15, 2008.[2] A hearing was held before an Administrative Law Judge (“ALJ”) who issued a partially favorable decision on August 14, 2012, finding Plaintiff was not disabled prior to March 6, 2012, but became disabled on that date and continued to be disabled through the date of his decision. The Appeals Council granted Plaintiff's request for review and vacated the ALJ's entire hearing decision, including the favorable portions. It remanded Plaintiff's case to the ALJ for further consideration of Plaintiff's earnings from 2011, consideration of Plaintiff's maximum RFC, and to obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base.

         The ALJ conducted a second hearing on September 11, 2014, and issued an unfavorable decision on February 25, 2015, finding that Plaintiff has not been under a disability from January 22, 2010, through the date of his decision. The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Plaintiff subsequently filed an action in this Court on September 1, 2015. (ECF No. 1.)


         The Magistrate Judge recommends affirming the ALJ's decision. The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). “However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the Magistrate Judge as to those portions of the report and recommendation to which no objections are addressed. While the level of scrutiny entailed by the Court's review of the Report thus depends on whether or not objections have been filed, in either case the Court is free, after review, to accept, reject, or modify any of the Magistrate Judge's findings or recommendations.” Wallace v. Housing Auth. of the City of Columbia, 791 F.Supp. 137, 138 (D.S.C. 1992) (internal citations omitted).


         The role of the federal judiciary in the administrative scheme established by the Social Security Act is a limited one. Under 42 U.S.C. § 405(g), the Court may only review whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). “Substantial evidence has been defined innumerable times as more than a scintilla, but less than preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964); see, e.g., Daniel v. Gardner, 404 F.2d 889 (4th Cir. 1968); Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966); Tyler v. Weinberger, 409 F.Supp. 776 (E.D. Va. 1976). In order for a reviewing court to determine whether the Commissioner based a decision on substantial evidence, “the decision must include the reasons for the determination . . . .” Green v. Chater, 64 F.3d 657, 1995 WL 478032, *2 (4th Cir. 1995) (citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986)). The statutorily mandated standard precludes a de novo review of the factual circumstances that substitutes the Court's findings for those of the Commissioner. See, e.g., Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968). Accordingly, “the court [must] uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by ‘substantial evidence.'” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). As noted by Judge Sobeloff in Flack v. Cohen, 413 F.2d 278 (4th Cir. 1969), “[f]rom 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 action.” Id. at 279. “[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 his conclusion is rational.” Vitek, 438 F.2d at 1157-58.


         Plaintiff filed objections to the Report and Recommendation on December 28, 2016 (ECF No. 29), and the Commissioner filed a reply on January 11, 2017 (ECF No. 32). Plaintiff objects to the Magistrate Judge's recommendation concerning the ALJ's alleged failure: 1) to consider whether the work performed by Plaintiff in 2011 and 2012 was done under special conditions as defined by 20 C.F.R. § 404.1573; 2) to consider whether any of the work performed by Plaintiff in 2011 constituted an unsuccessful work attempt as defined by 20 C.F.R. § 404.1574(c) and SSR 05-02; and 3) to consider all relevant evidence of record, including opinion evidence provided by two of Plaintiff's treating physicians. (ECF No. 29.)[3]

         A. Special Conditions under 20 C.F.R. § 404.1573

         Plaintiff first argues that the ALJ failed to consider whether the work performed by Plaintiff in 2011 and 2012 was done under special conditions as defined by 20 C.F.R. § 404.1573.

         Pursuant to 20 CFR § 404.1574, “[t]he amount of ... [a claimant's] earnings from work . . . [a claimant has] done . . . may show that . . . [the claimant has] engaged in substantial gainful activity [“SGA”].” 20 CFR § 404.1574. Thus, “[t]he regulations provide a presumption that if an individual is earning at or above the substantial gainful activity dollar amount, such work would “ordinarily show that [she has] engaged in substantial gainful activity.” Miller v. Astrue, 2011 WL 5526196, *3 (D.S.C. Oct. 24, 2011) (quoting 20 C.F.R. § 404.1574) (brackets in original), adopted by, 2011 WL 5526027 (D.S.C. November 14, 2011). However, the income guidelines of section 404.1574(b)(2) do not automatically disqualify a disability claim. On the contrary, “[t]his presumption of substantial gainful activity is not to be rigidly applied, and it may be rebutted.” Payne v. Sullivan, 946 F.2d. 1081, 1083 (4th Cir. 1991). Section 404.1573 requires an ALJ to consider other factors such as the nature of her work, how well she performs her work, if her work is done under special conditions, if she is self-employed, and the time spent in work. 20 C.F.R. § 404.1573; see also Payne, 946 F.2d at 1083 (stating that factors for consideration include “the nature of his work and his ability to do that work, including his endurance, his capacity to perform various physical functions, and his work schedule”).

         In his decision, the ALJ noted that Plaintiff earned $13, 303 in 2011 and $13, 246 in 2012, and found that both sums exceeded the SGA amount. ...

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