United States District Court, D. South Carolina, Rock Hill Division
PATRICK MICHAEL DUFFY JUDGE
matter is before the Court on Plaintiff Alfred Simmons'
objections to United States Magistrate Judge Paige J.
Gossett's report and recommendation (“R &
R”) (ECF Nos. 24 & 23). The Magistrate Judge
recommends that the Commissioner's decision be affirmed.
For the reasons stated herein, the Court overrules
Simmons' objections and adopts the R & R.
January 15, 2018, the Magistrate Judge issued her R & R
recommending that the Court affirm the ALJ's decision.
Simmons filed objections on January 30, and Defendant
responded on February 9. Accordingly, this matter is now ripe
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
reviewing court must uphold the findings and conclusions of
the ALJ “if they are supported by substantial evidence
and were reached through application of the correct legal
standard.” Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 1996). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion . . . .'”
Id. (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). “In reviewing for substantial
evidence, [the Court] do[es] not undertake to re-weigh
conflicting evidence, make credibility determinations, or
substitute [its own] judgment for that of the [ALJ].”
Id. (citing Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990)). When “conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled, ” the decision is left to the judgment of the
ALJ. Id. (quoting Walker v. Bowen, 834 F.2d
635, 640 (7th Cir.1987)).
raises three objections to the R & R. First, he objects
to the ALJ's finding that his peripheral vascular disease
was not a severe impairment. Second, he objects to the
Magistrate Judge's determination that the new evidence
presented to the Appeals Council does not merit remand to the
ALJ. Third, he objects to the ALJ's evaluation of his
subjective complaints. The Court addresses each in turn.
Peripheral Vascular Disease
argues that the Magistrate Judge and the ALJ erred in
determining that his peripheral vascular disease
(“PVD”) was not a severe impairment.
Specifically, Simmons argues that both the ALJ and Magistrate
Judge improperly relied on Simmons' vascular study
results (which were normal), rather than his arterial study
results (which showed abnormalities). Simmons bears the
burden of showing his impairment is severe. See Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).
determining that Simmons' PVD was not a severe
impairment, as defined by 20 C.F.R §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii), the ALJ noted that in
February 2014, Simmons' complaints were mostly related to
his osteoarthritis and his venous studies were negative. The
ALJ also noted that Simmons' May 2014 physical was
normal, though he acknowledged that a June arterial study
showed severe PVD on the right side and moderate PVD on the
left. Still, the ALJ found this condition was not a severe
impairment because a November vascular study showed that,
following treatment, Simmons' PVD was reduced to only
mild findings on the right and no PVD on the left.
argues that the ALJ improperly relied on the May physical to
conclude that Simmons did not have PVD at that time. He
argues that the physical is merely silent on his PVD because
it did not include any vascular or arterial testing. The
Court finds that Simmons misreads the ALJ's use of the
May physical. The ALJ did not conclude that the May physical
was conclusive evidence that Plaintiff did not have PVD at
that time. Rather, the ALJ merely noted that the May exam was
normal. Since Simmons bears the burden of showing he has a
severe impairment, Bowen, 482 U.S. at 146 n.5, a
physical that is merely silent with respect to his PVD fails
to help him meet his burden.
assuming, for the sake of argument, that a May vascular or
arterial study would have shown PVD, the ALJ's
determination is still supported by substantial evidence
since treatment improved Simmons' condition within a
matter of months. After the June diagnosis and some
treatment, the November vascular study showed only mild
symptoms on the right and no symptoms on the left. ...