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McAbee v. Berryhill

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

August 23, 2017

Carl Eugne McAbee, Jr., Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          Timothy M. Cain United States District Judge

         The plaintiff, Carl Eugene McAbee, Jr. (“McAbee”), brought this action pursuant to the Social Security Act (“SSA”), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (“Commissioner”), denying his claim for Disability Insurance Benefits (“DIB”).[1] In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(a), D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before this court is the magistrate judge's Report and Recommendation (“Report”), recommending that the court affirm the Commissioner's decision. (ECF No. 16).[2] In the Report, the Magistrate Judge sets forth the relevant facts and legal standards, which are incorporated herein by reference. McAbee has filed objections to the Report (ECF No. 18), and the Commissioner has responded to those objections (ECF No. 19). Accordingly, this matter is now ripe for review.

         I. Background

         McAbee applied for DIB on February 19, 2014, alleging disability beginning on December 24, 2013. (ECF No. 9-5 at 2-3). McAbee's application was denied initially and on reconsideration. On July 27, 2015, an Administrative Law Judge (“ALJ”) heard testimony from McAbee and a vocational expert. On October 23, 2015, the ALJ issued a decision denying McAbee's claim.

         In his decision, the ALJ found that McAbee suffered from the following severe impairments: mitral valve regurgitation and congestive heart failure. (ECF No. 9-2 at 12). The ALJ found that, despite McAbee's limitations, jobs existed in significant numbers in the national economy that he could perform. (ECF No. 9-2 at 18). McAbee sought review of his case by the Appeals Council. The Appeals Council denied McAbee's request for review, making the ALJ's decision the final decision of the Commissioner. This action followed.

         II. Standard of Review

         The federal judiciary has a limited role in the administrative scheme established by the SSA. 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 . . . 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. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). Thus, in its review, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] own judgment for that of the [Commissioner].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

         However, “[f]rom this it does not follow . . . 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). Rather, “the 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. Discussion

         In his objections, McAbee asserts that the Magistrate Judge erred by finding that the ALJ's credibility determination and the ALJ's decision to reject the opinions of a treating physician, Dr. Roberts, were supported by substantial evidence.

         A. Credibility

         In assessing his credibility, McAbee contends that the ALJ did not fairly weigh all of the evidence before him. McAbee acknowledges his heart failure symptoms were intermittent, but he contends that his condition severely limited his daily activities. He also contends that the ALJ and the Magistrate Judge believed that had McAbee simply taken his medication every day, he would have no limitations. He states the record does not support such a belief. While acknowledging that he testified at the hearing that Lasix effectively controlled many of his symptoms, McAbee contends that he also testified that he frequently could not afford Lasix, and he argues that it makes no difference if his symptoms could be cured or stabilized with a treatment he could not afford.

         Reviewing McAbee's testimony, he testified that when his legs swell, he has to take his medication, lay down, and elevate his legs. (ECF No. 9-2 at 42). He did not testify that he could not afford the medication for his edema. He further stated that “if I'm on the Lasix it'll keep the swelling ...


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