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Marion v. Berryhill

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

March 15, 2018

Marcia J. Marion, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.


          CAMERON MCGOWAN CURRIE Senior United States District Judge

         Through this action, Plaintiff seeks judicial review of the final decision of the Commissioner of Social Security denying her claim for Disability Insurance Benefits (“DIB”). Plaintiff appealed pursuant to 42 U.S.C. § 405(g). The matter is currently before the court for review of the Report and Recommendation (“Report”) of Magistrate Judge Mary Gordon Baker, made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rules 73.02(b)(2)(a) and 83.VII.02, et seq., D.S.C.

         The Report, filed January 30, 2018, recommends the decision of the Commissioner be affirmed. ECF No. 17. On February 13, 2018, Plaintiff filed objections to the Report. ECF No.18. On February 27, 2018, the Commissioner filed a response to Plaintiff's objections. ECF No.19. For the reasons stated below, the court adopts the Report as supplemented below and affirms the decision of the Commissioner.


         The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'”) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         The role of the federal judiciary in the administrative scheme established by the Social Security Act is a limited one. Section 205(g) of the Act provides, “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . .”[1] 42 U.S.C. § 405(g). The court must uphold the Commissioner's decision as long as it was supported by substantial evidence and reached through the application of the correct legal standard. Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). 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). “From this it does not follow, however, 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 action.” Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). “[T]he 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 his conclusion is rational.” Vitek, 438 F.2d at 1157-58. However, the court does not “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the ALJ.” Johnson, 434 F.3d at 653. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.” Id.


         Plaintiff applied for DIB on March 20, 2014, alleging disability as of March 7, 2014 due to her rheumatoid arthritis, osteoarthritis, fibromyalgia, high blood pressure, high cholesterol, diabetes, torn left knee meniscus, anxiety, depression, and stress. R[2]. at 87, 99. Plaintiff's application was denied initially and upon reconsideration. On December 2, 2015, a hearing was held before an Administrative Law Judge (“ALJ”). On January 13, 2016, the ALJ issued a decision, finding Plaintiff was not disabled within the meaning of the Act from the alleged onset date through the date of decision. Plaintiff submitted additional information to the Appeals Council, including records from Orthopedic Specialists of Charleston dated March 14, 2016 through April 4, 2016; medical records from St. Francis Hospital Rehabilitation - Spine & Sport Therapy, dated July 2, 2014; a letter from Dr. Sofia Aksentijevich dated March 30, 2016; and a questionnaire completed by Dr. John Graham, Jr., dated April 22, 2016. See R. at 3, 5. The Appeals Council denied Plaintiff's request for review of the ALJ's decision, making the determination of the ALJ the final decision of the Commissioner. Plaintiff filed this action October 3, 2016. ECF No. 1.


         The Magistrate Judge recommends the court affirm the Commissioner's decision. Plaintiff objects to the following findings in the Report: (1) the ALJ properly relied on early predictions by non-examining State agency sources about the duration of Plaintiff's disability and when her functioning would improve; (2) Plaintiff's knee improved sufficient to allow return to sustained work activity; (3) the Appeals Council did not err in failing to meaningfully address the new evidence submitted, and the ALJ's decision is supported by substantial evidence even when this new evidence is considered; and (4) the ALJ correctly evaluated Plaintiff's subjective complaints. ECF No. 18. The Commissioner argues Plaintiff's objections essentially rehash arguments made in her brief before the Magistrate Judge. ECF No. 19.

         1) Opinions of Prospective Improvement

         Plaintiff first argues the ALJ should not have accorded great weight to opinions by two non-examining State agency physicians regarding the likely duration of Plaintiff's inability to work due to arthroscopic knee surgery. ECF No. 18. She argues it was unnecessary for the ALJ to rely on opinions predicting Plaintiff would be capable of work in March 2015, because the hearing was after that date and the ALJ should have relied upon the evidence to determine whether Plaintiff was actually capable of returning to work. Because “the ALJ's error significantly colored her evaluation of residual functional capacity, ” Plaintiff argues, the court should decline to adopt the Report. Id. at 3.

         The Magistrate Judge thoroughly discussed this argument in the Report. ECF No. 17 at 10-15. Although Plaintiff argues the ALJ should have determined whether Plaintiff was actually capable of returning to work nearly a year after her arthroscopic knee surgery, it is clear from the Report there was substantial evidence supporting a finding her knee had improved. Medical records noted her knee had improved despite some continued pain, she was able to walk with a normal gait, and was walking 30-45 minutes daily using home exercise equipment. R. at 554, 560, 635. Her activities of daily living, including gardening, cooking, washing dishes, cleaning, shopping for groceries, and caring for her elderly mother weigh against a finding of disability. R. at 30-32, 58-59, 221, 477, 595. Therefore, the ALJ did not consider only the predictive opinions when formulating Plaintiff's residual function capacity (“RFC”), but took into account her functioning after the surgery as well. This objection is overruled.

         2) ...

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