United States District Court, D. South Carolina, Aiken Division
Hommer T. Mills, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
Timothy M. Cain Judge
Hommer T. Mills (“Mills”) 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”).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. 25). In her Report,
the magistrate judge sets forth the relevant facts and legal
standards, which are incorporated herein by reference. Mills
has filed objections to the Report (ECF No. 28), and the
Commissioner has responded to those objections (ECF No. 32).
Accordingly, this matter is now ripe for review.
December 8, 2005, Mills applied for DIB, alleging disability
beginning on June 5, 2004. Mills' application was denied
initially and on reconsideration. On September 3, 2008, Mills
amended his disability onset date to December 31, 2007, his
fiftieth birthday. On September 12, 2008, an Administrative
Law Judge (“ALJ”) heard testimony from Mills and
a vocational expert (“VE”). On October 8, 2008,
the ALJ denied Mills' claim for DIB. On August 6, 2010,
the Appeals Council remanded the action after concluding that
the ALJ erred in assessing Mills' credibility and in
failing to consider the opinion of podiatrist Dr. Charles J.
Gudas who opined that Mills was limited to a restricted range
of sedentary work.
30, 2011, the ALJ held a second hearing and heard testimony
from Mills and a VE. On July 13, 2011, the ALJ issued a
decision again denying Mills' claim. The Appeals Council
denied Mills' request for review. Thereafter, Mills
brought an action in this court seeking review. On August 12,
2014, the magistrate judge reversed the ALJ's decision
and remanded the case for further administrative
review. In part, the magistrate judge concluded
that the ALJ should have accorded greater weight to the
opinion of Dr. Gudas. In accordance with the court's
order, on September 22, 2014, the Appeals Council remanded
the case to an ALJ. On January 8, 2015, the ALJ held a
hearing and heard testimony from Mills and a VE, and on April
9, 2015, the ALJ issued a decision denying Mills' claim.
decision issued April 9, 2015, the ALJ found that Mills
suffered from the following severe impairments: degenerative
disc disease, status post lumbar surgery and left wrist
fracture, and leg length discrepancy. The ALJ determined that
Mills was unable to perform any past relevant work. The ALJ
determined Mills had the residual functional capacity
(“RFC”) to perform less than the full range of
light work. The ALJ concluded that Mills, despite these
limitations, could perform jobs that exist in significant
numbers in the national economy. Accordingly, the ALJ
determined that Mills was not disabled under the Act at any
time from December 31, 2007, the amended alleged onset date,
through December 31, 2009, the date last insured
(“DLI”). Mills sought review of his case by the
Appeals Council. On July 11, 2016, the Appeals Council denied
Mills' request for review. Thereafter, on September 1,
2016, Mills brought this action seeking judicial review of
the ALJ's decision.
STANDARD OF REVIEW
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).
“[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.
Report, the magistrate judge recommends that the court affirm
the ALJ's denial of DIB. Mills contends that the
ALJ's decision should be reversed and this action be
remanded based on the following grounds: 1) the ALJ failed to
fully comply with the court's prior order in evaluating
medical opinions from Drs. Gudas and Barry Weissglass; 2) the
ALJ failed to comply with the court's prior order in
assessing Mills' credibility; and 3) the ALJ did not meet
the Commissioner's burden at step five to prove that
other jobs existed that Mills could perform.
objections, Mills states that he wants “the [c]ourt to
enforce its own remand order.” (ECF No. 28 at 1). He
contends that the ALJ disregarded the prior remand order.
Id. In particular, Mills takes issue with the ALJ
giving little weight to Dr. Gudas' opinions despite the
previous remand order in which the magistrate judge stated
that the ALJ should have accorded Dr. Gudas' opinion
greater weight. Id. at 2.
Gudas, a podiatrist, examined Mills in June 2006, and wrote a
letter on July 26, 2007, describing Mills' limitations.
(ECF No. 9-9 at 79. 80-81). Dr. Gudas noted that Mills had a
leg length discrepancy where one leg was longer than the
other and this, along with his back injury, affected
Mills' ability to bend, squat, stand, walk, and lift
light weights. Id. He also completed an activity
restrictions checklist on September 25, 2007. (ECF No.9-9 at
77-78). In the prior remand order, the magistrate judge
determined that the ALJ had erred by according little weight
to the opinions of Dr. Gudas and some weight to Dr. Barry
Weissglass. (ECF No. 10-3 at 66-67). The magistrate judge
found that these opinions were supported by other evidence in
the record. In her remand order, the magistrate judge stated:
that the ALJ should have accorded greater weight to the
opinions of Drs. Gudas and Weissglass based on the criteria
set forth for evaluating opinion evidence. The undersigned is
not suggesting that Drs. Gudas's and Weissglass's
opinions are entitled to controlling weight, but is instead
indicating that the ALJ should have considered the
uncontroverted elements of their opinions apart from the
features that conflicted with other evidence in the ...