United States District Court, D. South Carolina, Greenville Division
Laura M. Slice, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, Defendant.
PATRICK MICHAEL DUFFY, United States District Judge
matter is before the Court on Plaintiff Laura M. Slice's
objections to United States Magistrate Judge Kevin F.
McDonald's report and recommendation (“R &
R”) (ECF Nos. 22 & 20). The Magistrate Judge
recommends that the Commissioner's decision be affirmed.
For the reasons stated herein, the Court overrules
Slice's objections and adopts the R & R.
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 proposed findings and recommendations 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 somewhat overlapping objections to the R &
R, each relating to the determination of her residual
functional capacity (“RFC”). First, she objects
to the ALJ's determination that a one-page medical source
statement completed by one of her treating physicians, Dr.
Willoughby, was entitled to little weight. Second, she
objects to the ALJ's failure to address her inability to
work on a sustained and continuing basis, as described in her
own testimony and Dr. Willoughby's medical source
statement. Third, she objects to the ALJ's evaluation of
her subjective complaints. Those complaints influenced the
ALJ's determination of her RFC and, in particular, her
ability to work continuously. In sum, Slice's objections
challenge the weight the ALJ gave to Dr. Willoughby's
medical source statement and her own subjective complaints in
determining her RFC. The Court first addresses the weight
given to Dr. Willoughby's statement and Slice's pain
testimony, then turns to Slice's ability to work
well settled that the RFC determination is a legal conclusion
left for the ALJ. See 20 C.F.R. §
404.1527(d)(2). The ALJ can give weight to some evidence,
while disregarding other 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). A reviewing court is required to uphold the ALJ's
RFC determination so long as the ALJ applied the correct
legal standards and made factual findings supported by
substantial evidence. Bird v. Comm'r of Soc. Sec.
Admin., 699 F.3d 337, 340 (4th Cir. 2012).
“Substantial evidence is ‘such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion . . . .'” Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). “‘[A]
necessary predicate to engaging in 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)). 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)).
objects to the weight the ALJ gave to Dr. Willoughby's
medical source statement when determining her RFC. The ALJ
explained that he gave Dr. Willoughby's statement
“little weight because treatment records, as discussed
above, do not support it.” (Social Security Admin. R.,
ECF No. 7-2, at 27.) The preceding paragraphs discuss
treatment records from interactions Slice had with Dr.
Willoughby, Dr. Brennan, Dr. Ross, and Dr. Chavez, and
summarize some of those doctors' assessments. As the ALJ
noted, those treating doctors-including Dr.
Willoughby-repeatedly found that Slice had a normal or stable
gait, intact sensation, normal motor strength, and
experienced good pain relief from various treatments. Thus,
the ALJ properly identified evidence that undermined Dr.
Willoughby's medical source statement and provided the
basis for the ALJ's determination that it was entitled to
contends that the Magistrate Judge erred by providing
“post-hoc” justifications for the ALJ's
determination that Dr. Willoughby's statement was
entitled to little weight. For example, though the ALJ did
not specify that the length of the treatment relationship was
among his reasons for giving Dr. Willoughby's statement
little weight, the Magistrate Judge noted that the statement
said Slice had limitations since September 2011, even though
Dr. Willoughby had only been treating her since January 2013.
The Magistrate Judge also noted that Dr. Willoughby's
statement was inconsistent with Dr. Ellison's treatment
notes and recommendations, though the ALJ did not explicitly
refer to Dr. Ellison's assessment in his decision. Though
the Court acknowledges that the Magistrate Judge looked to
parts of the record not specifically referenced by the ALJ,
the Court disagrees with Slice's contention that this was
improper. In Heeman v. Colvin, the court explained
that when a magistrate judge “points to additional
evidence in the record supporting the ALJ's opinion, the
magistrate judge is not applying a post hoc rationale.
Rather, the magistrate judge is simply noting that the
substantial evidence relied upon by the ALJ is not
inconsistent with other evidence in the record.” No.
2:13-cv-3607-TMC, 2015 WL 5474679, at *3 (D.S.C. Sept. 16,
2015). Thus, the Magistrate Judge did not err when he noted
additional evidence consistent with the ALJ's finding
when determining the weight given to Dr. Willoughby's
statement was supported by substantial evidence.
substantial evidence supports the ALJ's assessment of
Slice's subjective complaints of pain. The ALJ concluded
that Slice's testimony was entitled to “little
weight . . . because it is not consistent with the medical
evidence of record as a whole.” (Social Security Admin.
R., ECF No. 7-2, at 25.) The ALJ acknowledged that Slice
testified “to a significant impairment, ” but
found that “the medical evidence reveals relatively
benign clinical findings.” (Id.) Further, he
found that Slice was able to do many activities, such as take
care of her dogs, go shopping, and clean her house, albeit
with some breaks. Slice argues that the Magistrate Judge
erred when reviewing this determination by stating that she
could prepare meals for up to 45 minutes, when in fact she
could only prepare meals for 30 minutes at a time. However,
the Magistrate Judge properly relied on Slice's January
3, 2013 function report in which she wrote that she prepared
meals for “less than 45 minutes” with breaks.
(Social Security Admin. R., ECF No. 7-6, at 204.) Though
Slice's August 23, 2012 function report states that she
prepared meals for less than 30 minutes, the Magistrate Judge
did not err by stating a time frame that encompassed both
reports. More importantly, meal preparation was just one of
many activities the Magistrate Judge noted as substantial
evidence supporting the ALJ's determination of the weight
given to Slice's testimony about her pain. The Court
agrees with the Magistrate Judge that substantial evidence in
the medical records and Slice's account of her activities
supports the ALJ's assessment of Slice's subjective
complaints of pain.
Slice argues that while the Magistrate Judge acknowledged
that she could do some activities only with rest periods, the
ALJ failed to consider whether she could do sustained work.
However, the ALJ clearly acknowledged that Slice had
“periodic flare-ups, ” and he specified that she
could do various activities of daily living “to some
extent.” (Social Security Admin. R., ECF No. 7-2, at
25-26.) Nonetheless, he also found that her statements
“concerning the intensity, persistence, and limiting
effects of [her] symptoms are not entirely credible.”
(Id. at 25.) The Court finds that the ALJ did
consider Slice's ability to work continuously, he simply
did not find that her flare-ups or limitations rose to the
level of being disabling when determining her RFC.
reasons stated herein, it is ORDERED that
Slice's objections are OVERRULED, that
the R & R is ADOPTED, and that the
Commissioner's final ...