United States District Court, D. South Carolina, Greenville Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
this action, Plaintiff seeks judicial review of the final
decision of the Commissioner of Social Security denying her
claim for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”).
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 Kevin F. McDonald, 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.
Report, filed on September 5, 2018, recommends that the
decision of the Commissioner be affirmed. ECF No. 43. The
Magistrate Judge advised the parties of the procedures and
requirements for filing objections to the Report and the
serious consequences if they failed to do so. Plaintiff filed
no objections by the deadline, and the court entered an Order
adopting the Report and affirming the Commissioner. ECF No.
43. However, it was determined there was no record of the
Report being mailed to Plaintiff when it was filed.
Therefore, the Order was vacated on October 4, 2018, and the
court directed the Clerk to send a copy of the Report to
Plaintiff and allowed fourteen days for Plaintiff to file any
objections to the Report. ECF No. 50. The same day, the court
received a Reply by Plaintiff to the Order. ECF No. 54. On
October 16, 2018, Plaintiff filed objections to the Report.
ECF No. 56. On October 30, 2018, the Commissioner
filed a response to Plaintiff's objections. ECF No. 60.
Plaintiff filed a “response brief” on November 6,
2018, requesting her “objections be granted, ”
and an additional “response brief” on November 7,
reiterating her evidence. ECF Nos. 65, 67. For the reasons
stated below, the court adopts the Report and affirms the
decision of the Commissioner.
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).
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 . . . .” 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.”
initially applied for DIB on November 6, 2007, alleging
disability as of March 1, 2006. After a hearing, the
Administrative Law Judge (“ALJ”) issued an Order
on March 12, 2010, and found Plaintiff was not under a
disability. The Appeals Council denied review, and Plaintiff
did not appeal that decision. On September 30, 2010,
Plaintiff filed applications for DIB and Social Security
Income (“SSI”), alleging disability as of March
2, 2006. Her applications were denied on December 21, 2010,
and she did not appeal that determination.
applications for DIB and SSI subject to the instant appeal
were filed November 6, 2013, alleging she was unable to work
as of March 1, 2006. Her applications were denied initially
and on reconsideration. After a hearing on September 10,
2015, the ALJ issued a decision on January 8, 2016, finding
res judicata applied from March 1, 2006 to March 12, 2010,
and Plaintiff was not disabled within the meaning of the Act
from March 12, 2010 through the date of decision. Plaintiff
requested review by the Appeals Council, which was denied,
making the determination of the ALJ the final decision of the
Commissioner. Plaintiff filed this action pro se on June 1,
2017. ECF No. 1.
Magistrate Judge recommends the court affirm the
Commissioner's decision. Before the court vacated its
initial Order affirming the commissioner, Plaintiff filed a
Reply to the Order, arguing she had “demonstrated [she]
suffered a physical and mental disability, ” noted the
undersigned is not a Judge in Colleton County, and requested
“the court and the Honorable Judge Kevin F. McDonald to
make their decision and affirm Cathlena Jenkins Bright for
their final decision.” ECF No. 54. After she received
notice the Order was being vacated, Plaintiff filed
objections to the Report, objecting to essentially every
sentence of the Report with legalese-type arguments,
including “best evidence rule” and
“hearsay.” ECF No. 56. Construed liberally,
Plaintiff appears to be making the following
legal arguments: (1) the record reflects
Plaintiff was under a disability; (2) the Report did not
include medical records showing health problems, including
examples revealing “advanced degeneration” of her
cervical spine and details from a February 2014 emergency
room visit; (3) she declined surgery because of the risks;
(4) “only part of the plaintiff's impairment is
being introduced” but her four impairments should be
considered; and (5) the ALJ erred by making his decision
“on opinions not facts.” Id. The
Commissioner argues Plaintiff's objections fail because
the Federal Rules of Evidence (such as hearsay and the best
evidence rule, as cited by Plaintiff) do not apply in Social
Security administrative proceedings, and the ALJ did not err
but advanced a rational interpretation of the evidence that
should not be overturned. ECF No. 60.
reviewing the record de novo, the court overrules
Plaintiff's objections. Although Plaintiff argues she is
under a disability, this is the ultimate question for the ALJ
to determine. To that end, Plaintiff argues the ALJ made the
disability determination “on opinions not facts”;
however, the court agrees with the Magistrate Judge the ALJ
applied the correct legal standards and the decision is
supported by substantial evidence. The court further agrees
the ALJ may consider otherwise pertinent evidence that may
have been excluded in a court proceeding based on a strict
interpretation of the Federal Rules of Evidence.
argues the ALJ did not consider all her impairments, urging
the following impairments were not considered: “1)
strain and sprain rotator cuff, 2) strain and sprain thoracic
spine, 3) degeneration of cervical intervertebral and 4)
degeneration of lumbar spine with grade 1 retrolisthesis of
L5 on S1, scoliosis.” However, it is clear the ALJ
considered these impairments, as he found cervical and lumbar
generative disc disease, fibromyalgia, and history of left
rotator cuff surgery were severe impairments. R. at 22.
Further, although the Magistrate Judge may not have
summarized every medical record in the recitation of the
facts, his lengthy discussion of the facts and findings by
the ALJ show consideration of these impairments.
Plaintiff's argument regarding her reasons for declining
surgery fails. The surgery is not the only instance of
Plaintiff's failing to follow through with treatment
recommendations: the ALJ also cited failure to take
medications, failure to continue conservative treatment
(injections and physical therapy) for her low back and leg
pain, and noted this continued failure to follow treatment
recommendations suggests her symptoms may not have been as
serious as alleged. R. at 25. ...