United States District Court, D. South Carolina, Beaufort Division
James B. Burgess, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, Defendant.
PATRICK MICHAEL DUFFY United States District Judge
matter is before the Court on Plaintiff James Burgess'
objections to United States Magistrate Judge Bristow
Marchant's report and recommendation (“R &
R”) (ECF Nos. 20 & 16). The Magistrate Judge
recommends that the Commissioner's decision be affirmed.
For the reasons stated herein, the Court overrules
Burgess' objections and adopts the R & R.
Magistrate Judge issued his R & R on November 6, 2017.
After an extension of time, Burgess filed his objections to
the R & R on December 4, and the Commissioner replied on
December 18. Accordingly, this matter is now ripe for review.
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 recommendations and proposed findings 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
raises three objections to the R & R. First, he argues
that the administrative law judge (“ALJ”) failed
to fully develop the record by refusing to obtain an IQ test
or a psychological consultative evaluation. Second, he
contends that the Magistrate Judge erred by accepting the
ALJ's rejection of Burgess' treating physician's
opinions. Finally, Burgess objects to the Magistrate
Judge's findings as to the residual functional capacity
the ALJ assigned him. The Court addresses each objection in
first argues that the ALJ's failure to obtain an IQ test
precluded him from making an argument that he met the
elements of Listing 12.05C. He maintains that he would likely
have satisfied those elements. In response, the Commissioner
points out that this is the first time Burgess has raised the
issue that Burgess meets the elements of Listing 12.05C and
argues that the Court should not examine that issue de novo
because Plaintiff waived it by not arguing it before the
Magistrate Judge. Specifically, the Commissioner cites to
Samples v. Ballard, 860 F.3d 266 (4th Cir. 2017),
and contends that Burgess' listing argument is a new
issue rather than a new argument. Samples applied
the framework set out in United States v. George,
which “envisions a hierarchical scheme, wherein a
legal case is divided into issues, and
issues are further subdivided into arguments.”
860 F.3d at 272. The distinction is significant because, as
explained in Samples, the Court is not required to
review a new issue that was not presented to the Magistrate
Judge de novo, but it is required to conduct a de novo review
of a new argument that was not presented to the Magistrate
Judge. Id. at 273-74. Here, the Court agrees with
the Commissioner's view of Burgess' objection.
Burgess' initial brief before the Magistrate Judge, he
argues that his request for an IQ test was relevant and that
the ALJ should have granted that request because it would
have resulted in a finding that he was disabled under the
Medical-Vocational Guidelines. As the Commissioner notes, that
disability determination would arise at step five of the
evaluation process, and incorporates several of the ALJ's
other findings in order to conclude whether a plaintiff is
disabled or not. In contrast, whether Burgess meets a listing
would have been evaluated at step three of the process,
rather than step five. In the event that Burgess met a
listing, he would have been considered disabled without ever
reaching step five. The Court concludes that Burgess'
listing objection, presented for the first time to the Court,
is not simply a new argument under the hierarchical issue
that the ALJ failed to properly develop the record. Such an
interpretation would permit an open-ended “failure to
develop the record” objection to retroactively shoehorn
a plaintiff's arguments relating to one sequential step
into that plaintiff's arguments relating to an entirely
different sequential step. As discussed above, had Burgess
successfully argued that he met the elements of Listing
12.05C, he would never have reached step five of the
evaluation process. The Court concludes that because
plaintiff's listing objection pertains to an entirely
separate step of the evaluation process, the listing
objection is itself a new issue under Samples.
Accordingly, the Court need not conduct a de novo review and
instead reviews the R & R for clear error. Finding none,
the Court overrules Plaintiff's first objection.
the Court turns to Burgess' objection pertaining to the
ALJ's treatment of his treating physician's opinions.
Burgess was treated by Dr. Kelly, who opined at one time that
Burgess could walk for 10-15 minutes, or about 5-6 blocks,
without a cane. Dr. Kelly later opined that Burgess was
limited to standing and walking less than two hours a day,
and that all of Burgess' limitations were disabling.
Burgess contends that the ALJ erred in giving greater weight
to his orthopedic surgeon's opinion, Dr. O'Dell, than
to Dr. Kelly's opinion. Dr. O'Dell opined that
Burgess could return to sedentary, light duty work in
December 2012. The Magistrate Judge notes that Dr.
Kelly's opinion as to the degree of Burgess'
limitation did not match the medical findings in the record
or the nature of the conservative treatment administered.
Burgess contends that the Magistrate Judge's
determination based on the conservative nature of treatment
was also error because “the characterization of
treatment as conservative ‘alone does not provide any
insight into the severity of a given condition.'”
Wilson v. Colvin, No. 8:15-cv-4185-MGL-JDA, 2016 WL
6471904, at *15 (D.S.C. Oct. 19, 2016) (quoting Viverette
v. Astrue, No. 5:07-cv-395-FL, 2008 WL 5087419, at *2
(E.D. N.C. Nov. 24, 2008)). Here, however, the Magistrate
Judge's conclusion is not solely based on the nature of
the treatment but is also based on Dr. O'Dell's
opinion. As a result, Wilson is inapposite. In that
case, the plaintiff was treated conservatively, but was also
taking a number of medications and those medications had to
be changed a number of times because they were ineffective.
Id. Additionally, there was no substantial
contradictory evidence in Wilson. Id. That
is not the case here, as Dr. O'Dell's opinions are
consistent with the conservative nature of Burgess'
treatment. Accordingly, the Court concludes that the
ALJ's decision is supported by substantial evidence.
Burgess objects to the ALJ's conclusion that he could
perform light work when the ALJ determined his residual
functional capacity (“RFC”). Specifically,
Burgess contends that he is not capable of “standing or
walking, off and on, for a total of approximately 6 hours of
an 8hour workday” as contemplated by the grids'
description of light work. See 20 C.F.R. §
404.1567. However, the ALJ's RFC actually specifies that
Burgess can only perform a limited range of light work
because he can only stand or walk, off and on, for
approximately 4 hours of an 8-hour workday. Where, as here, a
claimant's capabilities fall between the ranges of work,
the ALJ will consider the extent of the erosion of the
occupational base and assess its significance. See
SSR 83-12, 1983 WL 31253 (Jan. 1, 1983). Where the extent of
that erosion is unclear, the adjudicator will need to consult
with a vocational resource, such as a vocational expert, as
the ALJ did here. See Id. In spite of Burgess'
limitations, the vocational expert still testified that there
were several jobs existing in sufficient numbers in the
national economy that he could perform given the limited
range of light work the ALJ concluded he could perform. This
is true whether he is capable of the full range of light work
or the limited range of light work given to the vocational
expert as a hypothetical. Accordingly, the Court concludes
that the ALJ's decision with respect to Burgess'
residual functional capacity is correct and therefore rejects
Burgess' argument that the ALJ incorrectly assigned him a
light work RFC.
reasons stated herein, it is ORDERED that
Burgess' objections are OVERRULED, that
the R & R is ADOPTED, and that the