United States District Court, D. South Carolina, Aiken Division
PATRICK MICHAEL DUFFY, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff John McDowell's
objections to United States Magistrate Judge Shiva V.
Hodges' report and recommendation (“R &
R”) (ECF Nos. 22 & 20). The Magistrate Judge
recommends that the Commissioner's decision be affirmed.
For the reasons stated herein, the Court overrules
McDowell's objections and adopts the R & R.
Magistrate Judge issued her R & R on April 16, 2018.
McDowell filed his objections to the R & R on April 30,
and the Commissioner replied on May 11. 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
essentially raises three objections to the R & R. First,
he asserts that the ALJ should not have discounted
McDowell's treating physician's opinion because the
evidence in the record demonstrates that McDowell's
conservative treatment history was based on his inability to
afford additional treatment. Second, he asserts that the ALJ
erred in concluding that McDowell's treating
physician's office notes consist of generally
unremarkable findings where those notes contain findings of
significant medical issues. Finally, McDowell objects to the
Magistrate Judge's conclusion that 6, 000 quality control
examiner jobs is a sufficient number of jobs for the
Commissioner to meet her burden of proof that McDowell can
transition to other work. The Court addresses McDowell's
objections in the order in which he presents them.
McDowell's argument that the ALJ should have taken into
consideration his inability to afford additional treatment
when determining that his medical treatment history was
conservative, the Court disagrees. As pointed out by the
Magistrate Judge, McDowell received recommendations and
referrals for free or low-cost medical providers and failed
to present to those providers. The Court agrees with the
Magistrate Judge that McDowell's failure to do so
undermines his contention that he would have sought more
aggressive treatment but for his financial situation. As for
his contention that the free or low-cost medical providers
would not have been able to provide him with CT scans or MRIs
due to their expense, the Court cannot take that into
consideration as McDowell never even investigated those
options and the treatments they could provide. In addition,
there is no evidence in the record on that issue. The Court
is sympathetic to McDowell's difficult situation in light
of his lack of health insurance, but is constrained to agree
with the Magistrate Judge that the ALJ's decision is
supported by substantial evidence.
the Court turns to McDowell's argument that the ALJ
improperly discounted his treating physician's opinions
regarding his functional limitations on the basis that
“they were not entirely consistent with treatment notes
indicating generally unremarkable findings as recently as
June 16, 2015.” (Social Security Admin. R., ECF No.
9-2, at 23.) The Court overrules this objection as well.
Though earlier treatment records suggested more significant
pain and symptoms, the above quote pertains to the ALJ's
use of the phrase “as recently as, ” rather than
the earlier treatment records. The ALJ considered all the
treatment records and determined that McDowell's treating
physician's opinion was not consistent with his actual
conservative course of treatment. The Court again concludes
that the ALJ's decision to afford the treating
physician's opinion little weight is supported by
substantial evidence for this reason and for the reason set
the Court overrules McDowell's objection to the
Magistrate Judge's conclusion that 6, 000 quality control
examiner jobs constitutes a significant number. Both McDowell
and the Magistrate Judge have noted the lack of controlling
authority on this question, but the Court agrees with the
Magistrate Judge that the Fourth Circuit's statement in
Hicks v. Califano, 600 F.2d 1048 (4th Cir. 1979), is
sufficient evidence of their view to overrule McDowell's
objection. In Hicks, the Fourth Circuit noted that
“[w]e do not think that the approximately 110 jobs
testified to by the vocational expert constitute an
insignificant number.” Id. at 1051 n.2. Here,
since there are approximately 6, 000 jobs available in the
national economy, the Court agrees with the Magistrate Judge
that there are significant number of jobs available and
overrules McDowell's objection.
reasons stated herein, it is ORDERED that
McDowell's objections are OVERRULED,
that the R & R is ADOPTED, and that the
Commissioner's decision is AFFIRMED.