United States District Court, D. South Carolina, Greenville Division
Kenneth B. Fray, II, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
Timothy M. Cain United States District Judge.
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”),  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). 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.
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.
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
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.
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.
Medical Opinion Evidence
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).
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.
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, ...