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Simmons v. Berryhill

United States District Court, D. South Carolina, Rock Hill Division

March 13, 2018

Alfred Simmons, Jr., Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          PATRICK MICHAEL DUFFY JUDGE

         This 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.

         PROCEDURAL HISTORY

         On 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 for review.

         STANDARD OF REVIEW

         The 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 note).

         DISCUSSION

         A 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)).

         Simmons 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.

         I. Peripheral Vascular Disease

         Simmons 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).

         In 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.

         Simmons 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.

         Even 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. ...


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