United States District Court, D. South Carolina, Florence Division
ORDER AND OPINION
matter is before the court upon review of the Magistrate
Judge's Report and Recommendation (“Report”)
(ECF No. 21), recommending that the Commissioner's
Decision be affirmed. For the reasons stated below, the court
ACCEPTS the Magistrate Judge's Report
(ECF No. 21).
FACTUAL AND PROCEDURAL BACKGROUND
court concludes upon its own careful review of the record
that the factual and procedural summation in the Report (ECF
No. 21) is accurate, and the court adopts this summary as its
own. The court will only recite herein procedures pertinent
to the court's review of the Report (ECF No. 21). On
September 26, 2017, Magistrate Judge Thomas E. Rogers, III
filed the Report (ECF No. 21), and on October 20, 2017,
Plaintiff timely filed an Objection (ECF No.
26).On October 30, 2017, the Commissioner
replied. (ECF No. 29.)
court has jurisdiction over this case pursuant to 42 U.S.C.
§ 405(g) which gives the court jurisdiction over a
review of a final decision of the Commissioner of Social
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(a) for the District of South Carolina. The
Magistrate Judge makes only a recommendation to this court,
which has no presumptive weight. The responsibility to make a
final determination remains with this court. See Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). The court is
charged with making a de novo determination of those
portions of the Report to which specific objections are made.
Fed.R.Civ.P. 72(b)(2)-(3). The court does not need to conduct
a de novo review of objections presented in the form
of “[complete restatements] of arguments already made,
. . . as these objections never cite specific conclusions of
the [Report] that are erroneous.” Smith v. City of
N. Charleston, 401 F.Supp.2d 530, 533 (D.S.C.
this court may review parts of the Magistrate Judge's
[Report] de novo, judicial review of the
Commissioner's final decision regarding disability
benefits ‘is limited to determining whether the
findings are supported by substantial evidence and whether
the correct law was applied.'” Sherby v.
Astrue, 767 F.Supp.2d 592, 594 (D.S.C. 2010) (citing
Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir.
2002)). “[I]t is not within the province of a reviewing
court to determine the weight of the evidence, nor is it the
court's function to substitute its judgment for that of
the Secretary if h[er] decision is supported by substantial
evidence.” Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990). Pursuant to 42 U.S.C. 405(g), the court
may affirm, modify, or reverse the Commissioner's
decision, with or without remanding the cause for a
has stated two (2) objections. Plaintiff's first
objection is in regard to the ALJ's weighing of Dr.
McLoughlin's opinion evidence. Plaintiff's second
objection is in regard to whether the Appeals Council
properly evaluated new and material evidence, and whether the
court can assess new evidence.
first objection is framed as a question, “[w]here the
ALJ improperly ignores the opinion evidence [of Dr.
McLoughlin], is it proper for the Magistrate Judge to allow
the decision to stand?” (ECF No. 26 at 1.) However,
Plaintiff's assertions in regard to this objection are
restatements of arguments that he made in his initial Brief
(ECF No. 14) or his Response Brief (ECF No.
For this reason, the court will only address Plaintiff's
second objection is also presented as a question,
“[w]here there is new and material evidence submitted
at the Appeals Council, and where that evidence might have
affected the findings of the fact-finder, [is] it proper for
the Magistrate Judge to allow the decision to stand?”
Plaintiff asserts that the Magistrate Judge is mistaken in
finding that the Appeals Council made no error in evaluating
the new and material evidence (Dr. McLoughlin's narrative
note (Tr. 344)), and that this case should be remanded. (ECF
No. 26 at 9-10.)
Plaintiff's Response Brief, he asserted that “. . .
greater evidentiary support [in the form of Dr.
McLoughlin's narrative note] is new and material evidence
that requires remand under Meyer [v.
Astrue, 662 F.3d 700 (4th Cir. 2011)].” (ECF No.
17 at 15.) Plaintiff also asserted that Dr. McLoughlin's
narrative note is not duplicative. (ECF No. 17 at 12.) The
Magistrate Judge took these arguments into consideration and
found that Dr. McLoughlin's note was not new because it
was “cumulative” and “duplicative, ”
and that it would not be material. (ECF No. 21 at 33.)
Therefore, the Magistrate Judge already addressed these
arguments. However, the court finds that Plaintiff
specifically objects to the Magistrate Judge making an
assessment regarding the new evidence, given that
“[a]ssessing the probative value of competing evidence
is quintessentially the role of the fact finder” and
the court “cannot undertake it in the first
instance.” (ECF No. 26 at 10.)
courts are limited to determining whether the
Commissioner's findings are supported by substantial
evidence and whether the correct law was applied.
Sherby, 767 F.Supp. at 594. Reviewing courts also do