United States District Court, D. South Carolina, Rock Hill Division
PATRICK MICHAEL DUFFY UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Nancy Payne's
objection to United States Magistrate Judge Paige J.
Gossett's report and recommendation (“R &
R”) (ECF Nos. 16 & 14). The Magistrate Judge
recommends that the Commissioner's decision be affirmed.
For the reasons stated herein, the Court overrules
Payne's objection and adopts the R & R.
Magistrate Judge issued her R & R on February 23, 2018.
Payne filed her objection to the R & R on March 9, and
the Commissioner replied on March 20. 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 note).
raises a lone objection to the R & R's analysis,
contending that the Magistrate Judge and the ALJ failed to
properly evaluate her fibromyalgia. All parties agree that
Payne's fibromyalgia does not meet the criteria necessary
to conclude that her fibromyalgia is a medically-determinable
impairment based on the 1990 criteria set forth in Social
Security Ruling 12-2p. However, Payne asserts that the ALJ
failed to consider whether she met the alternative 2010
criteria also set forth in SSR 12-2p. The Court disagrees.
order to satisfy either the 1990 or the 2010 criteria, SSR
12-2p requires in relevant part that medical doctors must
have excluded other disorders that could cause the symptoms
of fibromyalgia. SSR 12-2p, 2012 WL 3104869 (July 25, 2012).
The Magistrate Judge notes in her R & R that the ALJ
specifically concluded that there was “no evidence that
medical doctors have excluded other impairments as required
in SSR 12-2p.” (Social Security Admin. R., ECF No. 9,
at 23.) The Court agrees with the Magistrate Judge that the
ALJ's statement refers to both sets of criteria set forth
in SSR 12-2p. The Court further agrees with the Magistrate
Judge that Payne's failure to specifically reference any
evidence in the record is fatal to her general assertion that
her treatment records demonstrate that other impairments were
excluded. Payne bears the burden of proving her disability,
and her general assertion, without any specific citation to
the record, is insufficient for the Court to find that the
ALJ's decision was not supported by substantial evidence.
further evidence that other impairments were excluded, Payne
points to the ALJ's statements that “the record
does not support the severity of the symptoms, as alleged,
” and that “[t]hese objective and diagnostic test
findings are not consistent with the alleged incapacitating
impairments and indicate the claimant's impairments may
not be as severe or debilitating as alleged.”
(Id. at 28.) Payne argues that those statement are
evidence that the ALJ effectively excluded other impairments
as causing Payne's fibromyalgia symptoms because the ALJ
concluded that objective evidence did not support those other
impairments. Here, the Court again agrees with the Magistrate
Judge that this argument is speculative, and that the
ALJ's statements relate to the degree or severity of
Payne's seizure and COPD impairments. Those findings
alone do not create a reasonable inference that medical
doctors excluded other impairments that could have caused
Payne's fibromyalgia symptoms. More critically, that
speculative argument is insufficient to undermine the
ALJ's explicit conclusion that “there is no
evidence that medical doctors have excluded other impairments
as required in SSR 12-2p.” (Id. at 23.)
Payne's reliance on Pearson v. Commissioner of Social
Security, No. 1:16-cv-2726-PMD-SVH, 2017 WL 1378197, at *17
(D.S.C. Mar. 29, 2017), the Court agrees with the Magistrate
Judge that it is plainly distinguishable from this case. In
Pearson, the ALJ did not consider whether the claimant's
fibromyalgia equaled a fibromyalgia listing. 2017 WL 1378197,
at *17. Here, the ALJ explicitly did conclude that
Payne's fibromyalgia did not meet the listing at step
three. Moreover, the ALJ clearly explained her conclusion
that Payne did not have symptoms associated with
the Court agrees with the Government that to the extent Payne
now wishes to raise the argument that the ALJ should have
contacted Plaintiff s medical providers, that issue is waived
as it was first raised in Payne's objections and was not
presented to the Magistrate Judge. See Samples v. Ballard,
860 F.3d 266, 275 (4th Cir. 2017).
reasons stated herein, it is ORDERED that Payne's
objection is OVERRULED, that the R & R is ADOPTED, and