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Fray v. Berryhill

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

March 9, 2018

Kenneth B. Fray, II, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.


          Timothy M. Cain United States District Judge.

         The plaintiff, Kenneth B. Fray, II, (“Fray”), 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. 19).[2] In the Report, the magistrate judge sets forth the relevant facts and legal standards, which are incorporated herein by reference. Fray filed objections to the Report (ECF No. 22), and the Commissioner filed a response to those objections (ECF No. 23). Accordingly, this matter is now ripe for review.


         Fray applied for DIB on March 11, 2014, alleging disability beginning on March 5, 2009. (ECF No. 19 at 1). Fray's application was denied initially and on reconsideration. On May 29, 2015, an Administrative Law Judge (“ALJ”) heard testimony from Fray and a vocational expert. On July 28, 2015, the ALJ issued a decision denying Fray's claim.

         Fray sought review of his case by the Appeals Council. On October 16, 2015, the Appeals Counsel remanded the case for further administrative proceedings. On January 8, 2016, the ALJ held another hearing at which Fray and a vocational expert testified. Fray amended his alleged onset date of disability to August 2, 2013. On February 8, 2016, the ALJ issued a second decision denying Fray's claim. In his decision, the ALJ found that Fray suffered from the following severe impairments: degenerative disk disease, degenerative joint disease, carpal tunnel syndrome, obstructive sleep apnea, and peptic ulcer disease requiring surgery. Id. at 2. The ALJ found that, despite Fray's limitations, jobs existed in significant numbers in the national economy that he could perform. Id. Fray sought review of his case by the Appeals Council. The Appeals Council denied Fray's second 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, Fray contends that the magistrate judge erred by finding that substantial evidence supported the ALJ's assessment of: (1) medical opinion evidence (including the Department of Veteran Affairs' (“VA”) disability rating, the opinion of consultative examiner Dr. Scott Shaffer, Ph.D., and the lay witness statements) and (2) Fray's residual functioning capacity (“RFC”) with respect to his mental impairments and dumping syndrome.

         I. Medical Opinion Evidence

         First, Fray argues that the ALJ failed to properly consider the VA's disability rating. Fray acknowledges that the VA's rating, decided April 22, 2011, occurred prior to the relevant period of time, August 2, 2013, to September 30, 2014, but argues that the findings are relevant because they were “chronic” and persisted throughout the relevant time period. (ECF No. 22 at 2-3).

         However, as the magistrate judge discussed and quoted at length, the ALJ adequately considered the VA's rating and complied with the holding of the Fourth Circuit Court of Appeals in Bird v. Commissioner, 699 F.3d 337 (4th Cir. 2012) by giving substantial reasons for deviating from the VA's findings. (ECF No. 19 at 20-23). Specifically, the ALJ did not find the VA rating to be credible in light of the lack of positive objective findings during the relevant period and because Fray was not receiving treatment for any of the VA mentioned problems except for hypertension, which was being controlled with medication. Id. at 20.

         Further, Fray's argument in his objection that the VA's findings from over two years before the relevant time period remained relevant is based on a statement by Dr. Jomar Roberts, M.D. that Fray's stomach issues were chronic. (ECF No. 22 at 2). However, the ALJ explained his reasoning for the limited weight given to Dr. Roberts' statement: “Dr. Roberts documented that the claimant's stomach issues were chronic and without significant alleviation with his current regimen; however, that appears to be based upon the claimant's subjective statements and not objective findings. The claimant's physical examination was generally unremarkable.” (ECF No. 10-2 at 34); see Craig v. Chater, 76 F.3d 585, 590 n.2 (4th Cir. 1996) (“[Claimant] argues that the fact that [the doctor] observed [the claimant] (when she complained about the pain) transforms his observations into “clinical evidence.” If this were true, it would completely vitiate any notion of objective clinical medical evidence. There is nothing objective about a doctor saying, without more, “I observed my patient telling me she was in pain.”). Again, ...

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