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Gilmore v. Berryhill

United States District Court, D. South Carolina, Greenville Division

April 6, 2017

Tony Curtis Gilmore, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.


         Plaintiff Tony Curtis Gilmore 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), 1383(c)(3). (ECF No. 1.)

         This matter is before the court for review of the Report and Recommendation (“Report”) of United States Magistrate Judge Kevin F. McDonald, issued in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(a) (D.S.C.). (ECF No. 20.) On January 6, 2017, Magistrate Judge McDonald recommended that this court affirm the Commissioner's decision to deny Plaintiff disability insurance benefits (“DIB”). (ECF No. 20 at 36.) Plaintiff timely filed Objections to the Report (“Objections”) on January 20, 2017 (ECF No. 22), to which the Commissioner filed a Reply on February 1, 2017 (ECF No. 23).

         For the reasons set forth below, the court ACCEPTS the Magistrate Judge's Report and Recommendation (ECF No. 20) and AFFIRMS the decision of the Commissioner denying Plaintiff's claim for DIB.


         The Report contains a thorough recitation of the relevant factual and procedural background of this matter. (ECF No. 20 at 1-21.) The court concludes, upon its own careful review of the record, that the Report's factual and procedural summation is accurate and adopts this summary as its own. The court will only reference background pertinent to the analysis of Plaintiff's claims.

         Plaintiff was born on July 9, 1962, and is presently 55 years old. (ECF No. 11-3 at 4.) Plaintiff filed an application for DIB on August 11, 2006, which alleged disability since September 13, 2005. (ECF No. 11-5 at 17.) Plaintiff claimed he suffered from the following severe impairments: spinal stenosis, epidural fibrosis, degenerative disc disease of the lumbar spine, failed back syndrome, post lumbar laminectomy syndrome, lumbar spondylosis, left lumbar facet syndrome, and myofascial pain syndrome between September 13, 2005 and December 2, 2008. (ECF No. 20 at 3.) Plaintiff's initial DIB application was denied on November 2, 2006 (ECF No. 11-3 at 112), and also upon its reconsideration on February 26, 2007 (ECF No. 11-3 at 114). As a result, Plaintiff filed a request for an administrative hearing on March 3, 2007. (ECF No. 11-4 at 33.) On December 5, 2008, Plaintiff appeared at an administrative hearing before Administrative Law Judge Robert Egan (“ALJ Egan”). (ECF No. 11-2 at 91-112.) On May 5, 2009, ALJ Egan found that Plaintiff was not under disability as defined by the Social Security Act (“SSA”) because Plaintiff could perform a significant number of jobs in the national economy. (ECF No. 11-2 at 12-25 (citing SSA § 1614(a)(3)(A)).) On March 2, 2011, the Appeals Council remanded the case to ALJ Egan for review because “the decision does not explain the weight given to a functional assessment by Dr. Ekunsanmi . . . to the assessments of medical consultants . . . [and] does not explain the weight given to a vocational opinion.” (ECF No. 11-3 at 18-19.)

         Plaintiff appeared at a second administrative hearing before ALJ Egan. (ECF No. 12-1 at 58-113.) After review, ALJ Egan granted Plaintiff a partially favorable decision on October 26, 2011, finding Plaintiff disabled beginning on August 1, 2009. (ECF No. 11-3 at 21-23.) On April 10, 2012, the Appeals Council remanded ALJ Egan's decision and reassigned the case to a different administrative law judge to “[f]urther evaluate [Plaintiffs] subjective complaints . . . [and] [g]ive further consideration to [Plaintiffs] maximum residual functional capacity (ECF No. 11-3 at 43.)

         Plaintiff appeared at his third administrative hearing held on October 2, 2012, before Administrative Law Judge Theresa R. Jenkins (“ALJ Jenkins”). (ECF No. 11-2 at 27-43.) ALJ Jenkins issued a partially favorable decision, finding the plaintiff disabled on December 3, 2008. (ECF No. 11-2 at 7.) Plaintiffs appeal was denied by the Appeals Council, which made ALJ Jenkins' decision the final decision of the Commissioner for purposes of judicial review at that time. (ECF No. 11-2 at 2.)

         On June 19, 2013, Plaintiff filed an action in the United States District Court for the District of South Carolina against the Commissioner. (ECF No. 12-3 at 16-22.) On June 11, 2014, the court reversed the decision of the Commissioner and remanded the case back to the Commissioner for further proceedings. (ECF No. 12-3 at 8-11 (Gilmore v. Colvin, C/A No. 6:13-cv-01443-JMC (D.S.C. June 11, 2014) (ECF No. 43) (recommending that the court affirm the Commissioner's decision that Plaintiff was disabled since December 3, 2008 and “further recommends, upon the [Commissioner's] motion, [1] that the court reverse the [Commissioner's] finding that Plaintiff was not disabled prior to December, 3, 2008, and that the action be remanded for further proceedings”). On August 1, 2014, the Appeals Council informed Plaintiff that “[the court] . . . has remanded this case to the [Commissioner] . . . in accordance with the fourth sentence of section 205(g) of the Social Security Act.” (ECF No. 12-3 at 4.) As the Magistrate Judge in this case points out, “the Appeals Council directed the ALJ to ‘[o]btain evidence from a medical expert to clarify the date of onset, give further consideration to the claimant's maximum residual capacity and provide the rationales, as well as obtain evidence from a vocational expert.” (ECF No. 20 at 2.)

         On November 20, 2014, Plaintiff appeared before ALJ Jenkins for his fourth administrative hearing. (ECF No. 12-2 at 2-48.) On February 19, 2015, ALJ Jenkins determined that “[Plaintiff] was not under a disability within the meaning of the [SSA] from September 13, 2005 through December 2, 2008, the relevant period in question.” (ECF No. 12-1 at 20.) The Appeals Council denied Plaintiff's appeal on November 5, 2015, which made ALJ Jenkins' decision the final decision of the Commissioner for purposes of judicial review. (ECF No. 11-2 at 2.) On January 7, 2016, Plaintiff filed a Complaint seeking judicial review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). (ECF No. 1.)


         The Magistrate Judge makes only a recommendation to this court, which has no presumptive weight. Thus, 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 for clear error, including those portions to which only “general and conclusory” objections have been made. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); See also 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).

         The 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 if 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.” Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). “The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative agency.” Id. “[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.

         III. ANALYSIS

         A. The Magistrate Judge's Review

         In the Report, the Magistrate Judge addressed Plaintiff's arguments that ALJ Jenkins erred by “(1) failing to consider the medical expert's opinion; (2) failing to properly assess medical evidence; and (3) failing to provide a meaningful assessment of his subjective complaints.” (ECF No. 20 at 21.)

         First, the Magistrate Judge summarized the foundation for his conclusion that substantial evidence supported ALJ Jenkins' disability determination:

As argued by the Commissioner, Dr. Levine did not opine that [P]laintiff's restrictions while recovering from surgery would last for at least one full year. Social Security Ruling (“SSR”) 83-20 provides that “[t]he onset date should be set on the date when it is most reasonable to conclude from the evidence that the impairment was sufficiently severe to prevent the individual from engaging in SGA (or substantial gainful activity) for a continuous period of at least 12 months or result in death.” [] A close reading of Dr. Levine's testimony reveals that he opined that [Plaintiff] would be capable of less than sedentary work on a sustained basis for one day less than one year (Tr. 876). Then, “allowing for some back pain of the postoperative fusion, failed back syndrome, and even adjusting for some epidural fibrosis, . . . from September 13, 2006 through December 2008, ” [Plaintiff] was capable of performing a range of light work, including lifting 20 pounds occasionally and ten pounds frequently; sitting six of eight hours; standing for three of eight hours, but no longer than 30 minutes at one time without sitting for one to two minutes; walking for two of eight hours, but no longer than 20 minutes at one time; avoiding uneven surfaces; occasionally navigating ramps and stairs with a railing; occasionally kneeling; occasionally crouching, stooping or bending, but not repetitively; should avoid ladders, scaffolds, crawling, heavy vibrating machinery, unprotected heights, and extreme cold exposure; and should avoid repetitive twisting of the lumbar spine or truck; and only the use of the upper extremities for fine and gross manipulation (Tr. 877-78).

(ECF No. 20 at 21-23.)

         The Magistrate Judge further addressed Plaintiff's argument that ALJ Jenkins' discussion of Dr. Levine's testimony was “misleading”:

[W]hile the ALJ's assessment of . . . Dr. Levine's opinion could be clearer, the decision provides sufficient explanation for the RFC finding. The ALJ noted that Dr. Levine believed [Plaintiff] would be restricted to a less than sedentary position during his recovery from back surgery. However, the ALJ also noted that Dr. Levine testified that Dr. Ekunsanmi's opinion that [Plaintiff] was disabled starting in January 2005 did not correlate with the objective findings. (Tr. 738; see Tr. 876). The ALJ also reviewed other medical opinions from that same time frame and afforded them “significant weight” (Tr. 739). Specifically, the ALJ assigned “significant weight to the March 8, 2006 opinion of treating surgeon Dr. Brigham, who opined that [Plaintiff] could do whatever he was comfortable doing, even heavy lifting (Tr. 739; see Tr. 416) and that he could return to regular duties at that time . . . [t]he ALJ likewise gave “significant” weight to the opinion of Dr. Fleischer, who noted in May 2006 that [Plaintiff] was young and should be able to return to work (Tr. 739; see Tr. 417) . . . .

(ECF No. 20 at 23-24.)

         The Magistrate Judge then directed his attention to ALJ Jenkins' assessment of Plaintiff's primary care physician, Dr. Ekunsanmi:

The opinion of a treating physician is entitled to controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case . . . [SSR] 96-2p requires that an ALJ give specific reasons for the weight given to a treating physician's medical opinion . . .
The ALJ considered the opinions [of Dr. Ekunsanmi] and gave them “little weight, ” finding that the opinions were not consistent with the other objective evidence, as discussed by medical expert Dr. Levine, and that as a primary physician he was not a specialist, and therefore his opinion was entitled to less weight (Tr. 738) . . .
[Plaintiff] contends that it was in error for the ALJ to assign little weight to Dr. Ekunsanmi's December 2008 opinion because the ALJ found this opinion to be “controlling” in the previous December 14, 2012, decision. The [Plaintiff's] argument fails . . . the ALJ never assigned that opinion controlling weight and only assigned it “persuasive” weight to the extent it dealt with the [Plaintiff's] abilities as of December 3, 2008 - a period not at issue in this appeal . . . [and] the ALJ was to consider all issues de novo, including the weight of the medical ...

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