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Kappel v. Berryhill

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

September 28, 2017

Shannon Wayne Kappel, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.



         The plaintiff, Shannon Wayne Kappel (“Kappel”), 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”), [1] denying his claim for Disability Insurance Benefits (“DIB”). 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. 15).[2] In the Report, the magistrate judge sets forth the relevant facts and legal standards, which are incorporated herein by reference. Kappel filed objections to the Report (ECF No. 17), and the Commissioner filed a response to those objections (ECF No. 19). Accordingly, this matter is now ripe for review.


         Kappel applied for DIB on January 20, 2012, alleging disability beginning on December 13, 2011. Kappel's application was denied initially and on reconsideration. On May 28, 2014, an Administrative Law Judge (“ALJ”) heard testimony from Kappel and a vocational expert. On June 28, 2012, the ALJ issued a decision denying Kappel's claim.

         In his decision, the ALJ found that Kappel suffered from the following severe impairments: degenerative disk disease, peripheral vascular disease, obesity, affective disorder, and anxiety disorder. (ECF No. 15 at 2). The ALJ found that, despite Kappel's limitations, jobs existed in significant numbers in the national economy that he could perform. (ECF No. 15 at 3). Kappel sought review of his case by the Appeals Council. On March 28, 2016, the Appeals Council denied Kappel's request for review, making the ALJ's decision the final decision of the Commissioner. The present action followed.


         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.


         In his objections, Kappel contends that the magistrate judge erred by finding that substantial evidence supported (1) the ALJ's evaluation of the medical opinion evidence and (2) the ALJ's analysis of Kappel's credibility.[3]


         First, Kappel argues that the ALJ erred by giving limited weight to Dr. Stanbro's opinion and portions of Dr. Taylor's opinion. Kappel reiterates the same argument, in large part verbatim, that was presented to and addressed in depth by the magistrate judge. (ECF Nos. 11 at 10-15 and 17 at 2-5). However, objections to the magistrate judge's Report are not a subsequent opportunity to reargue the merits of a case-they are an opportunity to demonstrate to this Court particular errors in the magistrates reasoning. See 42 U.S.C. § 405(g); Craig, 76 F.3d at 589; Nichols v. Colvin, No. 2:14-cv-50, 2015 WL 1185894, at *8 (E.D. Va. Mar. 13, 2015) (stating that “a mere restatement of the arguments raised in the summary judgment filings does not constitute an ‘objection' for the purposes of district court review.” (citation omitted)). The court agrees with the magistrate judge's assessment.

         When the record contains numerous different medical opinions, including those from the Plaintiff's treating physicians, consultative examiners or other sources that are consistent with each other, then the ALJ makes a determination based on that evidence. See 20 C.F.R. § 416.927(c)(2). If, however, the medical opinions are inconsistent internally, or with other evidence, the ALJ must evaluate the opinions and assign them respective weight to properly analyze the evidence involved. Id. § 416.927(c)(2), (d). If a medical opinion is not assigned controlling weight by the ALJ, then the ALJ assesses the weight of the opinion by considering: (1) the length of the treatment relationship and the frequency of examinations; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area in which an opinion is rendered; and (6) other factors brought to the Commissioner's attention which tend to support or contradict the opinion. Id. § 404.1527(d)(2)-(6); Hines v. Barnhart, 453 F.3d 559, 563 (4th Cir.2006). The inquiry before the court is not whether the ALJ should have given greater weight to the opinions of the Drs. Stanbro and Taylor, but rather whether the weight given to those opinions by the ALJ is supported by substantial evidence. See 42 U.S.C. § 405(g); see also Craig, 76 F.3d at 589 (stating that the court does not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ]”).

         As discussed by the magistrate judge, the ALJ did not give controlling weight to Dr. Stanbro's opinions regarding lifting/carrying and standing/walking limitations in the 2012 or 2014 opinions because the objective findings regarding the Kappel's lower extremities did not support the extreme limitations in standing and walking opined by Dr. Stanbro and his own opinions contained unexplained inconsistencies. (ECF No. 15 at 22). The magistrate judge noted, for instance, that the examinations through the course of Kappel's case documented few significant problems with Kappel's legs, which were documented as having little or no swelling with only trace edema, full muscle strength, and normal tone and bulk (absence of atrophy). (ECF Nos. 7-9 at 42, 45, 7-10 at 4-5, 18, 33, 8-1 at 13, 8-2 at 35-36, 65, 8-3 at 11, 8-4 at 4-5, 15, 21, 29, 40, 50, 8-6 at 29, 8-8 at 16). Kappel was only given a conservative course of treatment for his legs; Dr. Stanbro did not even recommend surgery or medication, only compression stockings. See, e.g., Smith v. Colvin, C.A. No. 2:14-3224-TMC, 2016 WL 943667, at *4 (D.S.C. Mar. 14, 2016) (pain medication and injections generally considered to be conservative); see also Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) (“If a symptom can be reasonably controlled by medication or treatment, it is not disabling.”). Further, Stanbro stated after the questionnaire in 2012 that as long as Kappel was wearing his compression stockings, Kappel's limitations would be dictated by what he feels he can do and ...

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